MANU/GJ/0055/1986

Equivalent/Neutral Citation: AIR1986Guj209, 1985 GLH 1076, (1986)1GLR1, 1986LabIC 1749, 1987(2)LLN346(Guj.), 1986(1)SLR516

IN THE HIGH COURT OF GUJARAT

Misc. Civil Appln. Nos. 455 and 869 of 1984
Decided On: 18.10.1985
Mohammedbhikhan Hussainbhai and Ors. Vs. The Manager, Chandrabhanu Cinema and
Ors.
Hon'ble Judges/Coram:
P.R. Gokulakrishnan and I.C. Bhatt, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.H. Shaikh and A.G. Vyas, Advs.
For Respondents/Defendant: B.R. Gupta, S.V. Raju, D.G. Karia and Anil Dave, Advs.

ORDER
1-2. x x x x
3. The questions referred for consideration of the larger bench are whether the Labour
Courts under the Bombay Industrial Relations Act and the Industrial Disputes Act and
Industrial Courts under the Bombay Industrial Relations Act and Industrial Tribunals
under the Industrial Disputes Act are Courts and Courts subordinate to the High Court in
terms of S. 10 of the Contempt of Courts Act, and whether the Board of Nominees
functioning under S. 96 of the Gujarat Co-operative Societies Act, 1961 as well as the
Co-operative Tribunals constituted under the said Act are courts and courts subordinate
to the High Court within the meaning of section 10 of the Contempt of Courts Act, 1971.
4. In order to answer the aforesaid questions, it will be necessary to have a look at the
relevant statutory provisions holding the field.
11. Statutory provisions :- Contempt of Courts Act, 1971 defines contempt of courts ~s
per section 2 of the said Act. Civil contempt is defined by section 2(b) as under : -
" civil contempt means wilful disobedience to any judgment, decree, direction,
order, writ or other process of a court or wilful breach of an undertaking given
to a court;" While 'criminal contempt' is defined in seetion, 2(c) as under
'Criminal contempt' means the publication (whether by words, spoken or
written, or by signs, or by visible representations, or otherwise) of any matter
or the doing of any other act whatsoever which -
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority
of, any court; or
(ii) prejudices or interferes or tends to interfere with, the due course of any
judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the
 administration of justice in any other manner;"
Section 10 of the Act which is, relevant for our present purpose reads as under : -
"Every High Court shall have and exercise the same jurisdiction, powers and
authority, in accordance with the same procedure and practice., in respect of
contempt of courts subordinate to it as it has-and exercise in respect of
contempts of itself Provided that no High Court shall take cognizance of a
contempt alleged to have been - committed in respect of a court subordinate to
it where such contempt is an offence punishable under the Indian Penal Code".
It is in the background of the aforesaid statutory settings that the moot
questions posed for our consideration will have to be answered. It is obvious
that if the contempts alleged are of courts and that too courts subordinate to
the High Court, this court will have jurisdiction to look into them and to give
proper reliefs to the concerned parties.
5. 111. Legal metrics: - In order to answer the aforesaid questions, we may at the very
outset refer to the ratios of a catena of the decisions of the Supreme Court and High
Courts laying down the principles for deciding the aforesaid twin questions, which were
cited by the learned Advocates appearing for the respective parties as well as by the
learned advocates who were permitted to intervene at the stage of arguments in these
References as they had filed similar matters pending in this Court raising similar
questions. In the case of Bharat Bank Ltd. Delhi v. Employees of Bharat Bank
MANU/SC/0030/1950 : (1950)NULLLL J921SC , five-member Bench of the Supreme
Court consisting of Kania, C.J., Fazl Ali, Patanjali Sastri, Mahajan and B. K. Mukherjea,
JJ. had to examine the question whether award of the Industrial Tribunal functioning
under the Industrial Disputes Act, could be appealed against under Article 136 of the
Constitution or not. The said Article gives appellate jurisdiction to the Supreme Court by
way of special leave to appeal against the decisions of courts and tribunals. The
question was whether industrial tribunal which adjudicated upon the industrial dispute
on reference made to it for that purpose by the appropriate Government under S. 10 of
the Act functioned as a judicial tribunal whose decision could be made the subject-
matter of special leave proceedings under Article 136. By a majority consisting of three
learned Judges - Kania, C. J., Faz;1 Ali and Mahajan, JJ the Supreme Court in the
aforesaid case held that the award of the Industrial Tribunal can be validly made the
subject-matter of appeal by way of special leave under Article 136 as the Tribunal under
the Industrial Disputes Act can be said to be discharging judicial functions. We may
usefully refer to the separate judgments rendered by all-the said three learned Judges
constituting majority. Kania, C. J. concurring with Fazl Ali and Mahajan, JJ. observed as
under : -
"Having considered all the provisions of the Act, it seems to me clear that the
Tribunal is discharging functions very near those of a court, although it is not a
court in the technical sense of the word".
6. Thereafter, the learned Chief Justice made the following observations in para 3 of the
report : -
"The next question is whether under Art. 136 the Court has jurisdiction to
entertain an application for leave to appeal against the decision of such a body.
It is not disputed that the Court has power to issue writs of certiorari and
prohibition in respect of the work of the Tribunal. The only question is whether
there is a right of appeal also. In my opinion, the wording of Art. 136 is wide
 enough to give jurisdiction to the Court to entertain an application for leave to
appeal".
FazI Ali, J. in his judgment in para 7 of the report has made the following pertinent
observations : -
"Now, there can be no doubt that the industrial tribunal has, to use a well
known expression all the trappings of a court' and performs functions which
cannot but be regarded as judicial. This is evident from the rules by which the
proceedings before the tribunal, are regulated. It appears that the proceeding
before it commences on an application which in many respects is in the nature
of a plaint. It has the same powers as are vested in a Civil Court under the
Code of Civil Procedure when trying a suit, in respect of discovery, - inspection,
granting adjournment, reception of evidence taken on affidavit, enforcing the
attendance of witnesses; compelling the production of documents, issuing
commissions, etc. It is to be deemed to be a Civil Court within the meaning of
Ss. 480 and 482, Criminal P.C. 1898. It may admit and call for evidence at any
stage of the proceeding and has the power to administer oaths. The parties
appearing before it have the right of examination, cross-examination and re-
examination and of addressing it after all evident has been called. A party may
also be represented by a- legal practitioner with its permission."
In para 8 of the report, the following observations are made : -
"The matter does not rest there. The main function of this tribunal is to
adjudicate on industrial disputes which implies that there must be two or more
parties before it with conflicting cases and that it has also to arrive at a
conclusion as to how the dispute is to be ended. Prima facie, therefore, a
tribunal like this cannot be excluded from the scope of Art. 136".
Repelling the contention of the contesting party that as industrial Court unlike regular
Civil Court can create contracts which are opposed to contractual rights, it is not a
tribunal substituting a Civil Court. FazI Ali, J. made the following observations in para 9
of the report .
"The Tribunal has to adjudicate in accordance with the provisions of the
Industrial Disputes Act. It may sometimes override contracts, but so can a court
which has to administer law according to the Bengal or Bihar and other similar
Acts. The Tribunal h , as to observe the provisions of the special law which it
has to administer though that law may be different from the law which an
ordinary court of justice administers. The appellate court, therefore, can at least
see that the rules according to which it has to act and the provisions which are
binding upon it are observed, and its powers are not exercised in an arbitrary
or capricious manner".
Thereafter, repelling the contention on behalf of the contesting party that the
adjudication of the tribunal has not at all the attributes of a judicial decision because
the adjudication cannot bind the parties until it is declared to be binding by the
Government under S. 15 (forerunner of present section 17A of the Act), Fazl Ali, J.
adopting the ratio of the decision in the case of Rex v Electricity Commissioners;
London Electricity Joint Committee Co. (1920) Ex parte, (1924) 1 KB 171 which was
rendered in connection with legality and propriety of issuance of a writ of mandamus
and certiorari, quoted with approval the following observations in the aforesaid decision
in the case of Rex (supra) : -
 "It is necessary, however, to deal with what I think was the main objection of
the Attorney General. In this case he said the Commissioners come to no
decision at all. They act merely as advisers. They recommend an order
embodying a scheme to the Minister of Transport, who may confirm it with or
without modifications. Similarly the Minister of Transport comes to no decision.
He submits the order to the Houses of Parliament, who may approve it with or
without modifications. The Houses of Parliament may put anything into the
order they please, whether consistent with the Act of 1919 or not. Until they
have approved; nothing is decided and in truth the whole procedure, draft
scheme, inquiry, order, confirmation, approval, is only part of a process by
which Parliament is expressing its will, and at no stage is subject to any control
by the Courts. It is unnecessary to emphasize the constitutional importance of
this contention In the provision that the final decision of the Commissioners is
not to be operative until it has been approved by the two Houses of Parliament
I find nothing inconsistent with the view that in arriving at that decision the
Commissioners themselves are to act judicially and within the limits prescribed
by Act of Parliament, and that the Courts have power to keep them within those
limits. It is to be noted that it is the order of the Commissioners that eventually
takes effect neither the Minister of Transport who confirms nor the Houses of,
Parliament who approve, can under the statute make an order which in respect
of the matter in question has an operation. I know of no authority which
compels me to hold that proceeding cannot be a judicial proceeding subject to
prohibition or certiorari because it, is subject to confirmation or approval, even
where the approval has to be that of the Houses of Parliament. The authorities
are to the contrary".
Then in Para I I of the report, the learned Judge observed as under: -
"It is well known that a writ of certiorari can issue only against an order of a
judicial or quasi-judicial tribunal and if it is permissible for the High Court to
issue a writ of certiorari i against an industrial tribunal, which fact was not
seriously disputed before us, I find it difficult to bold that the tribunal does not
come within the purview of Art.-136. If a subordinate court acts in excess of its
jurisdiction or assumes a jurisdiction which it does not possess, the appellate
Court can always interfere and do what is contemplated to be done by a writ of
certiorari".
Thereafter, the question whether in certain special cases, when power was given to the
appropriate government to modify or reject the award, finality of the award was affected
or not, was taken up for consideration. The provision in the then existing section 15,
which is now re-enacted in terms of two provisos to section 17A(l)wherein appropriate
Government in cases where it is a party to the award has been given limited power in
given contingencies on public ground to declare the award not to be enforceable on the
expiry of 30 days and similar powers have been given to Central Govt. to make the
award of National Tribunal unenforceable on similar ground, was considered and in that
connection, it was laid down in para 12 of the report that despite such provision, in
cases where the appropriate Government is not a party to the disputes, all that the
Government has to do on receiving the award of the tribunal is to declare it to be
binding and to state from what date and for what period it will be binding. Section
15(2) was held as mandatory and it was further observed: -
"The act itself makes a distinction between cases in which the Government is a
party and those in which the Government is not a party. The proviso relates to
 a very special type of case and as at present advised I do not wish to express
any opinion as to whether an appeal lies to this court or not in such a case, but
in my judgment, where the Government has only to declare the award to be
binding, an appeal shall lie".
7. The third learned Judge Mukherjea, J. took a similar view on the scheme of the I.D.
Act. In para 24 of the report, the learned third Judge made the following observations: -
"It was conceded that a tribunal constituted under the Industrial Disputes Act,
1947 exercises quasi-judicial powers. That phrase implies that a certain content
of the judicial power of the State is vested in it and it is called upon to exercise
it. An attempt was made to define the words judicial' and 'quasi judicial in the
case of Cooper v. Wilson (1937) 2 KB 309 : 106 L J KB 728. The relevant
quotation reads thus : -
'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 argument by the parties, and (4) a decision,
which disposes of the whole matter by a finding upon the facts in
dispute and application of the law of the land to the facts, so found,
including where required a ruling upon any (f1sputed question of law.
A quasi-judicial decision equally presupposes an existing dispute
between two or more parties and involves (1) and (2), but does not
necessarily involve (3) and never involves (4). The place of (4) is in
fact taken by administrative action, the charter of which is determined
by the Minister's free choice".
The extent of judicial power exercised by an Industrial Tribunal will be
considered hereinafter in the light of the observations cited above".
There after the scheme of the 1. D. Act was examined and having done so, in para 27 of
the report, that learned Judge held that it is difficult to conceive in view of these
provisions that the Industrial Tribunal performs any functions other than that of a
judicial nature. The tribunal has certainly the first three requisites and characteristics of
a court as defined above. It was further observed that the whole procedure adopted by
the Act and the Rules is modelled on the Code of Civil Procedure. Therefore, in view of
the learned Judge, the Industrial Tribunal had all the necessary attributes of a Court of
justice. It had no other function except that of adjudicating on a dispute. It was no
doubt true that by reason of the nature of the dispute that they may have to adjudicate
the law gives them wider powers than are possessed by ordinary courts of law but
powers of such a nature did not affect the question that they are exercising judicial
power. It was then: observed :-
"Statutes like the Relief of Indebtedness Act, or the Encumbered Estates Act
have' conferred powers on courts which are not ordinarily known to law and
which affect contractual rights. That circumstance does not make them anything
else but tribunals exercising judicial power of the State though in a degree
different from the ordinary court and to an extent which is also different from
 that enjoyed by an ordinary court of law. They may rightly be described as
quasi-judicial bodies because they are out of the hierarchy of the ordinary
judicial system but that circumstance cannot affect the question of their being
within the ambit of Art. 136."
Thereafter, in para 28 of the report, the learned Judge noted provisions of S. 29 which
indicated that breach of award would result in penal consequences. In that light, the
learned Judge observed:
"An award which has these serious consequences can hardly be said to have
been given by a Tribunal which does not exercise some of the most impotent
judicial functions of the State." .
Thereafter the learned Judge noted the scheme of sections 15 and 19 of the Act about
coming into force of the award on publication by the Government and held that under S.
15(2) no discretion was left with the Government to affirm, modify or reject the award.
It was bound to declare it binding. It had no option in the Matter. The learned Judge
also approved the observations made in (1924) 1 KB 171 which are reproduced earlier
while referring to the decision of Fazi Ali, J. Ultimately in para 30, it has been held :-
"No discretion whatsoever has been left in the Government in ordinary cases to
either modify or reject the determination of the tribunal. The fact that the
Government has to make a declaration after the final decision of the tribunal is
not in any wav inconsistent with the view that the .
In view of the aforesaid decisions of the three learned Judges of the Supreme Court
constituting majority of court which decided the case in Bharat Bank
MANU/SC/0030/1950 : (1950)NULLLL J921SC (supra) the question remains no longer
open to doubt and it has got to be held that the award delivered by the industrial
tribunal functioning under the 1. D. Act is a result of exercise of judicial power
entrusted to the tribunal by the Statute and consequently the industrial Court exercising
such power cannot but be held to be a court having all the trappings of a judicial body
and hence, it has got to be held that the industrial tribunal under the Act would be a
court within the meaning of S. 2 read with S. 10 of the Contempt of Courts Act, 1971.
In fact, in view of the comprehensive consideration of the scheme of the 1. D. Act by all
the three learned Judges of the Supreme Court constituting majority as early as in 1950,
the concerned question referred to us for our decision has to be held not to have
remained res integra. Still however, we have considered the questions from all angles
as various authorities were cited by the concerned learned advocates appearing before
us in support of their rival contentions.
8. We may now turn to the next decision of the Supreme Court rendered in the case of
Brajnandan Sinha v. Jyoti Narain MANU/SC/0085/1955 : 1956CriL J156 on which strong
reliance was placed by the learned Advocates for the petitioners as well as by the
learned Advocate Mr. Gupta appearing for the contesting respondents. In that case, the
Supreme Court was concerned directly with the question as to under what
circumstances an authority can be considered to be a court within the meaning of S. 3
of the Contempt of Courts Act, 1952 which is the forerunner of present section 10 of the
Contempt of Courts Act, 1971 that holds the field today and which is in pari materia
with section 3 in the predecessor Act. In that case, three learned Judges of the Supreme
Court had to consider the question whether the Commissioner appointed under Public
Servants (Inquiries) Act, can be said to be a court as contemplated by section 3 of the
Contempt of Courts Act, 1952. Bhagwati, J. as he then was, speaking for the Supreme
Court made the following observations while answering this question : -
"The word 'court' is not defined in the Contempt of Courts Act and the
expression 'courts subordinate to the High Courts' in S. 3(l) would prima facie
mean the courts of law subordinate, to the High Courts in the hierarchy of
courts established for the purpose of administration of justice throughout the
Union - -
The definition of 'court' in S. 3, Evidence Act is not exhaustive but framed only
for the purpose of that Act and is not to be extended where such an extension
is not warranted.
The definitions of the words 'Judge' and 'court of justice' in Ss. 19 and 20 of
the Penal Code indicate that the pronouncement of a definitive judgment is
considered the essential sine qua non of a court and unless and until a binding
and authoritative judgment can be pronounced by a person or body of persons
it cannot be predicated that he or they constitute a court.
It is clear, therefore, that in order to constitute a court in the strict sense of the
term an essential condition is that the court should have, apart from having
some of the trappings of a judicial tribunal, power to give a decision or a
definitive judgment which has finality and authoritativeness which are the
essential tests of a judicial pronouncement.
These tests must be applied for determining what is a court strictly so called
within the connotation of the term as used in the Contempt of Courts Act". ,
In the light of the aforesaid decision, it was held that the Commissioner appointed
under the Public Servants (Inquiries) Act cannot be said to be a court as sections 21
and 22 of the Act clearly showed that position of the Commissioner was merely as a fact
finding authority and the report made by him to the Government was merely an
expression of opinion and it lacked both finality and authoritativeness which are
essential tests of a judicial pronouncement. Mr. Gupta for the respondents, however,
placed strong reliance on the later observations of Bhagwati, J. in the aforesaid case
wherein it was stated that the Commissioners under the Public Servants (Inquiries) Act
were given certain powers of the civil and military courts in regard to punishing
contempts and obstruction to their proceedings and they had also powers for
summoning the witnesses, compelling the production of documents and for service of
their process as also the same protection as zila and city Judges and that power of
punishing contempts and obstruction to their proceedings as is given to civil and
criminal courts by the Code of Criminal Procedure 1898 was also similar in its nature
and the very nature and extents of the power indicated that they were n)to courts in the
ordinary sense o ' f the term. In our view, these later observations of the Supreme
Court in the aforesaid case do not advance the case of the respondents any further, as
the clinching circumstances for deciding whether an authority is a court or not viz.
power to adjudicate by way of authoritative judgment which has finality and
authoritativeness being not there with the Commissioners, they can never be treated as
courts within the meaning of Contempt of Courts Act and consequently for guarding
them against contempts, statutory provision had to be made in the Act enabling such
Commissioners to function effectively. In view of the scheme of I.D. Act as considered
by the Supreme Court in Bharat Bank's case MANU/SC/0030/1950 :
(1950)NULLLL J921SC (supra), the basic requirements for judging whether the authority
is a judicial tribunal or not have got to be held to have been satisfied so far as the
tribunal functioning under I.D. Act is concerned, even applying the clinching tests for
deciding such question as laid down by the Supreme Court in Brajnandan's case (1956
Cri LJ 156) (supra).
9 . In the same volume is another judgment reported in the case of Virindar Kumar v.
State of Punjab MANU/SC/0075/1955 : 1956CriL J326 . A Bench consisting of three
other learned Judges of the Supreme Court presided over by B. K. Mukherjea C. J. had
to examine the question whether returning officer deciding on the validity of the
nomination paper under S. 36(2) of the Representation of the People Act, 1951 was a
court within the meaning of section 193, 1. P. Code, or not. The following pertinent
observations were made by Venkatarama Ayyar, J. speaking for the Supreme Court : -
"What distinguishes a court from a quasi-judicial tribunal is that it is charged
with a duty to decide disputes in a judicial manner and declare the rights of
parties in a definitive judgment. To decide in a judicial roarmer involves that
the parties are entitled as a matter of right to be heard in support of their claim
and to adduce evidence in proof of it.
And it also imports an obligation on the part of the authority to decide the
matter on a consideration of the evidence adduced and in accordance with law.
When a question therefore arises as to whether an authority created by an Act
is a court as distinguished from a quasi-judicial tribunal, what has to be
decided is whether having regard to the provisions of the Act it possesses all
the attributes of a court".
The very question as to under what circumstances the tribunal or authority can be held
to be a court as envisaged by section 3 of the Contempt of Courts Act, 1952 which as
seen above is pari materia with the present section 10 of the 1971 Act again cropped up
before the Supreme Court for consideration in the case of Thakur Jugal Kishore v.
Sitarnarhi Central Co-op. Bank MANU/SC/0349/1967 : 1967CriL J1380a . The Supreme
Court bench consisting of J. M. Shelat and G. K. Mitter, JJ. in the aforesaid case had to
consider whether the Assistant Registrar functioning under the provisions of the Bihar
and Orissa Co-operative Societies Act was a court within the meaning of section 3 of the
Contempt of Courts Act, 1952 and whether he was a court subordinate to the High
Court. Answering both the questions in the affirmative, the Supreme Court speaking
through Mitter, J. considered all the relevant judgments on the point including the
judgments of the Supreme Court in Bharat Bank's case MANU/SC/0030/1950 :
(1950)NULLLL J921SC (supra), Brajnandan's case 1956 Cri L J 156 (supra) and Virinder
Kumar's case (1956 Cri L J 326) (supra) and various other decisions of the Supreme
Court and other courts. In the light of ratio of various decisions of the Supreme Court
on the point as aforesaid, the following conclusion was reached in Jugal Kishore's case
(supra) :-
"A registrar exercising powers under S. 48 must be held to discharge the duties
which would otherwise have fallen on the ordinary civil and revenue courts of
the land. The Registrar has not merely the trappings of a court but in many
respects he is given the same powers as are given to ordinary Civil Courts of
the land by the Code of Civil Procedure including the power to summon and
examine witnesses on oath, the power to order inspection of documents, to
hear the parties after framing issues, to review his own order and even exercise
the inherent jurisdiction of courts mentioned in' S. 151 of the Code of Civil
Procedure. In adjudicating upon a dispute referred under S. 48 of the Act, the
Registrar is to all intents and purposes, a court discharging the same functions
 and duties in the same manner as a court of law is expected to do. Therefore,
an Assistant Registrar discharging the function of Registrar under S. 48 read
with S. 6(2) of Bihar and Orissa Co-operative Societies Act is a court."
Having decided that question, the Supreme Court addressed itself to the second limb of
the question as to whether the Registrar being a court was subordinate to the High
Court. That question was answered in the affirmative by placing reliance on Art. 227 of
the Constitution, and it was held that as the Registrar's decision can be corrected under
the supervisory jurisdiction of the High Court under Art. 227, he would be subordinate
to the High Court for the purpose of S. 3 of the Contempt of Courts Act. The relevant
observations on this aspect are as under : -
Article 228 does not indicate that unless a High Court can withdraw a case to
itself from another court for disposing of a substantial question of law as to the
interpretation of the Constitution, the latter court is not subordinate to the High
Court. This Article is only intended to confer jurisdiction and power on the High
Court to withdraw a case for the purpose mentioned above from i the ordinary
courts of law whose decision may, in the normal course of things, be taken up
to the High Court by way of an appeal. Article 227 is of wider amb-1t; it does
not limit the jurisdiction of the High Court to the hierarchy of courts functioning
directly under it under the Civil Procedure Code and Criminal Procedure Code
but it gives the High Court power to correct errors of various kinds of all courts
and tribunals in appropriate cases. Needless to add that error as to the
interpretation of the Constitution is not out of the purview of Art. 227 although
the High Court could not, under the powers conferred by this Article, withdraw
a case to itself from a tribunal and dispose of the same, or determine merely
the question of law as to the interpretation of the Constitution arising before
the tribunal. The subordination for the purpose of S. 3 of the Contempt of
Courts Act means judicial subordination and not subordination under the
hierarchy of courts under the Civil Procedure Code or the Criminal Procedure
Code".
10. In the aforesaid case, Mitter, J. speaking for the Court considered various decided
cases of the Supreme Court and English courts as well as passage in Halsbury's Laws of
England, Third Edition, Vol. 9, at page 342, laying down the parameter of the' word
'court. Observations in Cooper v. Wilson, (1937) 2 KB 309 were referred to and relied
upon. These observations read as under - -
"It is clear, therefore, that in order to constitute a court in the strict sense of
the term, an essential condition is that the court should haw~, apart from
having some of the trappings of a judicial tribunal, power to give a decision or
a definitive judgment which has finality and authoritativeness which are the
essential tests of a judicial pronouncement".
Four characteristics making up a judicial decision as laid down in Brajnandan's case
MANU/SC/0085/1955 (SC) (supra) were also extracted with approval in para 16 of the
report. Mr. Gupta for the respondents as well as Mr. V. B. Patel who intervened on
behalf of the respondents submitted that the ratio of the decision in Thakur Jugal
Kishore's case (MANU/SC/0379/1976) (SC) (supra) will not apply as the scheme of
Bihar and Orissa Cooperative Societies Act as considered by the 'Supreme Court is
entirely different from the scheme of the Industrial Disputes Act. We will consider this
aspect when we deal with the scheme of the Industrial Disputes Act hereafter. Suffice it
to say for the present that the tests as laid down in the above ruling for deciding
whether an authority is a court within the meaning of S. 3 Of the Contempt of Courts
Act, 1952 will have to be applied in the present references for deciding the questions
referred for our consideration. It is pertinent to note that in Jugal Kishore's case
(supra), it is clearly indicated by the Supreme Court that though the word 'court' is used
in the Contempt of Courts Act, the Supreme Court did not confine the term court ' as
employed by the said Act to encompass only regular civil Courts established under the
Civil Courts Act but extended the coverage of the word 'court' as employed by the
Contempt of Courts Act to include even other judicial authorities constituted under
separate statute like Bihar and Orissa Co-operative Societies Act. The argument of Mr.
Gupta for the respondents, that the term 'court' as employed by the Contempt of Courts
Act should be confined only to civil Courts or courts in technical sense of the term or in
strict sense of the term cannot be accepted as it runs quite counter to the decision of
the Supreme Court in Jugal Kishore's case (supra). Mr. V. B. Patel appearing for the
respondents as an intervener and Mr. Gupta for the respondents further contended that
in any case, the decision of two member bench in Jugal Kishore's case (supra) to the
extent that it holds that the Assistant Registrar functioning under the Bihar and Orissa
Co.-operative Societies Act was a court subordinate to the High Court, taking 'the
assistance of Art. 227 of the Constitution for that purpose, should not be relied upon as
it runs counter to the ratio of 'the decision of the three-member bench of the Supreme
Court reported in MANU/SC/0085/1955 : 1956CriL J156 (supra). Bhagwati, J. speaking
for three-member bench in that case has observed in para 8 of the report that -
"The word 'court' was not defined in the Act and the expression 'courts
subordinate to the High Courts' would prima facie mean the courts of law
subordinate to the High Courts in the hierarchy of courts established for the
purpose of administration of justice throughout the Union".
Relying upon these observations, the learned. counsel for, the respondents vehemently
contended that the three-member bench of the Supreme Court which decided
Brainandan's case (supra) has taken the view on the phrase court subordinate to the
High Court which runs counter to the ratio of the decision of two-member bench of that
Court which decided Jugal Kishore's case (supra) and consequently, it should be held
that before any court is considered to be court subordinate to the High Court, it should
be ascertained whether it is subordinate to the High Court in the hierarchy of courts and
if such hierarchy is absent, recourse to Article 227 of the Constitution cannot be taken
for culling out subordination of such authority which may fall outside the hierarchy of
ordinary courts. It is not possible to agree with this contention of the respondents for a
number of obvious reasons. Firstly, the observations of three-member bench in
Brainandan's case (supra) themselves clearly indicate that the Supreme Court in that
case had not authoritatively pronounced upon the question whether a court subordinate
to the High Court within the meaning of section 3(1) of the Contempt of Courts Act
must be a court subordinate in the hierarchy of courts. Employment of the word 'prima
facie'suggests that it was a tentative opinion of the Supreme Court and was not an
authoritative pronouncement. Secondly, the decision in Brainandan's case (supra) was
very much before the two-member bench of the Supreme Court which decided Jugal
Kishore's case (supra). This judgment was noticed and referred to on four different
occasions in paras 13, 14, 15 and 16 of the report. It is of course true that the
observations in para 8 of the report in Brajnandan's case (supra) were not expressly
noticed in Jugal. Kishore's case (supra). However, it cannot be said that the Supreme
Court while deciding Jugal Kishore's case (supra) had no occasion to refer to the ratio
of the decision of the three-member bench in Brajnandan's case (supra). Thirdly, the
observations in Brajnandan's case (supra) even assuming that they were laying down
the ratio decidendi had nowhere ruled that courts subordinate to the High Court within
the meaning of section 3(1) of the Contempt of Courts Act cannot be such courts which
are under the superintending jurisdiction of the High Court under Article 227 of the
Constitution. If there are authorities which are courts established for the purpose of
administration of justice throughout the union, they can very well remain subordinate to
the High Court via superintending jurisdiction of the High Court under Art. 227 of the
Constitution. Consequently, the observations made in Brajnandan's case
(MANU/SC/0085/1955) (SC) (supra) regarding subordination of courts as contemplated
by section 3(l) of the Contempt of Courts Act in no way contradict the authoritative
pronouncement of the Supreme Court on this aspect in Jugal Kishore's case (supra). On
the contrary, the observations in both these judgments can be reconciled and can
harmoniously co-exist. .Consequently, there remains no occasion for going into the
further question as to whether the alleged contradictory observations of three-member
bench in Brajnandan's case (supra) should supersede the observations by two-member
bench in Jugal Kishore's case (supra). In our view, the decision in Jugal Kishore's case
(supra) on both the vital points viz. whether statutory authority can be considered to be
a court and secondly whether it is a court subordinate to the High Court within the
meaning of section 3(1) of the Contempt of Courts Act, remains a binding decision
under Art. 141 of the Constitution and the present reference will have to be decided in
the light of the aforesaid authoritative pronouncement of the Supreme Court.
11. We may now turn to a later decision of the Supreme Court in the case of S. K.
Sarkar v. Vinay Chandra MANU/SC/0506/1980 : 1981CriL J283 . Another Division Bench
of two learned Judges of the Supreme Court in the aforesaid case has taken the same
view on the phrase courts subordinate to the High Court' as employed by section 10 of
the Contempt of Courts Act, 1971 which is in pari materia to section 3 of the earlier Act
of 1952. In that case, the question arose as to whether the Board of Revenue
functioning under the U. P. Zamindari Abolition and Land Reforms Act was a court
subordinate to the High Court as contemplated by section 10 of the Contempt of Courts
Act, 1971, whose contempt can be taken cognizance of by the High Court. Answering
the question in the affirmative, the Supreme Court speaking through R. S. Sarkaria, J.
made the following pertinent observations in para 15 of the report : -
"The provision in section 10 is but a replica of section 3 of the 1952.Act. The
phrase courts subordinate to it" used in section 10 is wide enough to include all
courts which are judicially subordinate to the High Court, even though
administrative control over them under Article 235 of the Constitution does not
vest in the High Court". It must be seen that the aforesaid decision of the
Supreme* Court runs parallel to the ratio of the decision of the Supreme Court
in Thakur Jugal Kishore's case (MANU/SC/0379/1976) (supra) and takes the
very same view though the earlier judgment of the Supreme' Court in Jugal
Kishore's case (supra) was not cited in S. K. Sarkar's case (supra). The
aforesaid decision of the Supreme Court is also a judgment for the proposition
that the term 'court' as employed is of comprehensive import and includes
within its sweep not only ordinary regular civil courts or courts in the strict
sense of the term but also other statutory judicial authorities even though they
may not be strictly subordinate to the High Court in the hierarchy of courts and
may not be administratively subordinate to the High Court.
12. Before we advert to decisions of the High Courts on the point, it is necessary to
refer to certain other decisions of the Supreme Court on which strong reliance was
placed by Mr. Gupta for the respondents in support of his contention that the term
'court' as contemplated by section 10 of the Contempt of Courts Act, 1971 would
include only full-fledged civil courts or courts in technical and restricted sense o f the
term and would not include other statutory judicial authorities which may be even
Tribunals within the meaning of Articles 227 and 136 of the Constitution. In the case of
Nityanand v. LIC of India MANU/SC/0320/1969 : (1969)IILLJ711SC , the Supreme Court
had to consider the question whether period of limitation for filing applications as laid
down by Article 137 of the Limitation Act, 1963 would apply to application under
section 33-C(2) of the I.D. Act. The Supreme Court in the aforesaid decision took the
view that when such an application is filed before the labour court, it would not be
governed by the period of limitation as prescribed by the Limitation Act as the labour
court was not a court within the Indian Limitation Act, 1963. The aforesaid decision
cannot be of any assistance to Mr. Gupta for the respondents for the simple reason that
the Limitation Act, itself prescribes the period of limitation as per the Schedule for filing
suits and other applications before regular civil courts. As the labour court is not a
regular civil court, the period of limitation prescribed in the schedule of the Limitation
Act would not automatically be applicable to applications filed before the labour court.
The aforesaid decision of the Supreme Court taking this view cannot in any way be,
projected to the Contempt of Courts Act, 1971 where according to the Supreme Court
decisions directly on the point, as we have seen earlier, the word 'court' has been
interpreted to take in its sweep not only regular civil courts or courts in the strict sense
of the term but also judicial authorities functioning under diverse statutes. Mr. Gupta
then invited our attention to the decision of the Supreme Court in the case of
Engineering Mazdoor Sabha v. Hind Cycles Ltd. MANU/SC/0279/1962 :
(1962)IILL J760SC . In that case, the Constitution Bench of the Supreme Court was
concerned with the question whether the award passed by the Arbitrator appointed by
parties as per section 10A of the I.D. Act can be appealed against under Article 136 of
the Constitution. It was held that as the Arbitrator appointed by the parties derives his
power not through any statute, but only through the agreement of parties, his award
was an award of arbitrator simpliciter and could not be elevated to the status of an
award of tribunal within the contemplation of Article 136 of the Constitution. This
judgment will be of no assistance to Mr. Gupta for two obvious reasons. Firstly, in the
present references, we are not concerned with the question whether an award rendered
by the arbitrator of the choice of parties to whom reference is made under Section 10A
of the I.D. Act for arbitration can be considered to be a decision of court, within the
meaning of section ID of the Contempt of Courts Act. Consequently, the ratio of the
decision of the Supreme Court in the aforesaid case would strictly be not relevant for
resolving the present controversy. Secondly, the Supreme Court in the aforesaid case
ruled that the, arbitrator acting under Section 10A of the I.D. Act would not be a judicial
tribunal relying upon the scheme of Section 10A then existing. Thereafter, Section 10A
has been amended by the Parliament by introducing sub-sections (3A) and (4A) therein.
The scope and ambit of these amended provisions and their effect on the nature of
award passed by the arbitrator came to be considered by the Supreme Court in the case
of Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha MANU/SC/0369/1979 :
(1980)ILL J137SC wherein in terms it has been held that arbitrator functioning under
section 10A especially in the light of the amended provisions of section 0A, can be said
to be discharging judicial functions. Mr. Gupta next placed reliance on a decision of the
Supreme Court in the case of Jaswant Sugar Mills v. Lakshmi Chand
MANU/SC/0277/1962 : (1963)ILL J524SC . In that case, the Supreme Court had to
consider the question whether an appeal under Article 136 of the Constitution would lie
from an order of conciliating officer-exercising powers under Clause 29 of the order of
U.P. Government under sections 3 and 8 of the U.P. Industrial Disputes Act. It was held
in that case that the conciliator was not invested with judicial powers of the State and
hence his decision cannot be said to be decision of the tribunal which would attract
Article 136. On the scheme of the relevant provisions' it was found that though
conciliation officer was no doubt an authority to act judicially in determining application
under clause 29, he was not invested with judicial powers of the State and, therefore,
he cannot be regarded as Tribunal. While deciding as above, Shah, J. speaking for the
Supreme Court made the following pertinent observations about characteristics of
judicial decision: -
"A judicial decision is not always the act of a judge or a tribunal invested with
power to determine questions of law or fact; it must however be the act of a
body or authority invested by law with authority to determine questions or
disputes affecting the rights of citizens and under a duty to act judicially. A
judicial decision always postulates the existence of a day laid upon the
authority to act judicially. Administrative authorities are often invested with
authority or power to determine questions, which affect the rights of citizens.
The authority may have to invite objections to the course of action proposed by
him, he may be under a duty to hear the objectors, and his decision may
seriously affect the rights of citizens but unless in arriving at his decision he is
required to act judicially, his decision will be, executive or administrative. Legal
authority to determine questions affecting the rights of citizens, does not make
the determination judicial; it is the duty to act judicially which invests it with
that character. What distinguishes an act judicial from administrative is
therefore the duty imposed upon the authority to act judicially.
To make a decision or an act judicial, the following criteria must be satisfied :
(i) it is in substance a determination upon investigation of a question
by the application of objective standards to facts found in the light of
pre-existing legal rules;
(2) it declares rights or imposes upon parties obligations affecting their
civil rights; and
(3) that, the investigation is subject to certain procedural attributes
contemplating an opportunity of presenting its case to a party,
ascertainment of facts by means of evidence 'if a dispute be on
question of fact, and if the dispute be on question of law on the
presentation of legal argument, and a decision resulting in the disposal
of the matter on findings based upon those questions of law and fact."
In our view, the aforesaid decision instead of aiding the respondents on the contrary
clearly indicates the scope and ambit of the powers of the authority which can be
treated as a tribunal or judicial authority and falls in line with other decisions of the
Supreme Court on the point.
13 to 15 . X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X
XXXX
16. We may now turn to the decisions of the High Courts on the point. So far as this
court is concerned, a Division Bench of this court consisting of J. B. Mehta, Acting C.J.
and P. D. Desai, J. (as they then were) had an, occasion to consider the question
whether Education Tribunal constituted under the Secondary Education Act, 1972 can be
said to be a court within the meaning of section 2(b) read with section 10 of "ne
Contempt of Courts Act, 1971. Having analyzed the scheme of the Secondary Education
Act, J. B. Mehta, Actg. C. J. spoke for the court as under in the case of S. R. Patel v.
Manager, Sharda Vidyalaya MANU/GJ/0133/1977 : (1978)19GLR751 , placing reliance
on a decision of the Supreme Court in MANU/SC/0349/1967 : 1967CriL J1380a (supra) :
"In view of the aforesaid scheme such an education tribunal would be clearly
satisfying the settled tests of a court as laid down by their Lordships in Jugal
Kishore v. Sitamarhi Central Co-op. -Bank MANU/SC/0349/1967 :
1967CriL J1380a . There-the question had arisen before their Lordships whether
the Assistant Registrar discharging functions of Registrar under the Bihar and
Orissa Cooperative Societies Act was a court so that contempt jurisdiction could
be exercised, 'Their Lordships pointed out at page 1499 that a Registrar
exercising powers under Section 48 of the Act which provided the machinery for
domestic adjudication of these disputes was discharging the duties which would
otherwise have fallen on the ordinary civil and revenue courts of the land. The
Registrar had not merely the trappings of a court but in many respects he was
given, the same powers as were given to ordinary Civil Courts of the land by
the Code of Civil Procedure including the power to summon and examine
witnesses on oath, the power to order inspection of documents, to hear the
parties after framing issues, to review his own order and even exercise the
inherent jurisdiction of courts mentioned in Section 151 of the Code of Civil
Procedure. In adjudicating upon a dispute referred under Section 48 of the Act,
the Registrar was to all, intents and purposes a court discharging the same
functions and duties in the same manner as a court of law was expected to do.
The settled principles were followed where it had been field that in order to
constitute a court in the strict sense of the term, an essential condition was that
the court should have, apart from having some of the trappings of a judicial
tribunal, power to give a decision or a. definitive judgment which had finality
and authoritativeness which were the essential tests of a judicial
pronouncement. Here the Registrar was to all intents and purposes, a court, and
therefore, it was held that such a Registrar deciding a co-operative reference
under Section 48 was a court. At page 1500' it was pointed out that a true
judicial decision pre-supposes an existing dispute between two or more parties,
and then involved four requisites; (1) the presentation (not necessarily orally)
of their case by the i 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. All these
requisites were found present in that case, because the Assistant Registrar had
almost all the powers which an ordinary civil court possessed and after
considering the evidence he had to come to a conclusion on the evidence
adduced and the arguments advanced. Parties could be represented even by
legal practitioners '. The result was the same as if a decree was pronounced by
a court of law. The adjudication was not based upon a private reference but it
was his decision arrived at not in a summary manner, but with all the
paraphernalia of a court and the powers of an ordinary civil court of the land".
It was then observed in para 10 of the report -
"If the same tests are to be adopted, the Education Tribunal has not
merely trappings of a court but for all intents and purposes it court
invested with all the powers of a court and it has to decide these
disputes by finally pronouncing a judgment after taking evidence if
 adduced and hearing the arguments advanced and disposing of the
dispute as per the law and following the correct settled legal
principles".
We wholly agree with the tests culled out by this court from the ratio of the decision of
the Supreme Court in MANU/SC/0349/1967 : 1967CriL J1380a (supra) for deciding as to
under what circumstances the statutory authority entrusted with the task of adjudicating
a dispute between private parties can be, considered to be a court within section 10 of
the Contempt of Courts Act, 1971. However, the reasoning of the Division Bench in para
11 of the report to the effect that subordination to the High Court as per Article 226 of
the, Constitution would satisfy the test of a court,: being subordinate to the High Court
within the meaning of Section 10 of the Contempt of Courts-Act, prima facie appears to
be unjustified as proceedings under Article 226 of the Constitution are considered to be
of original nature. However, we are not required to closely examine this aspect of the
matter in view of the fact that the word ' tribunal which was deleted from Art. 227 by
Constitution (42nd Amendment) Act, 1975 by adding new clause 5 to the said Article,
was restored in the Article by Constitution (44th Amendment) Act. At the time when this
court decided S. R. Paters case MANU/GJ/0133/1977 : (1978)19GLR751 (supra), the
word 'tribunal' had stood deleted from Art. 227 and consequently, the court had to
make the exercise of culling out judicial subordination of the Tribunal to the High Court
under Art. 226.
17. So far as the Bombay High Court is concerned, there are three decisions, which are
required to be noted. In the case of Registrar, High Court, Bombay V. S. K. Irani
MANU/MH/0056/1963 : AIR1963Bom254 , the Division Bench of the High Court had to
consider the question whether the authority functioning under Payment of Wages Act,
1936 can be said to be court within the meaning of section 3 of the Contempt of Courts
Act, 1952. It was held by the Division Bench speaking through Tambe. J that
"The authority functioning under the Payment of Wages Act, 1936 possesses all
the attributes of a court and the decision given by the authority satisfies the
test of a true judicial decision laid down by the Supreme Court in V. K.
Satyawadi v. State of Punjab MANU/SC/0075/1955 : 1956CriL J326 and
Brajnandan Sinha v. Jyoti Narain MANU/SC/0085/1955 : 1956CriL J156 . The
authority, therefore, constituted under the Payment of Wages. Act is a court
within the meaning of the Contempt of Courts Act, 1952."
It was further held that it was subordinate to the High Court on account of its judicial
subordination under Art. 227. For coming to this conclusion, earlier decisions of the
Bombay High Court in AIR 1955 Born 103: (1955 Cri L J 351) and Full Bench decision of
the Allahabad High Court in MANU/UP/0085/1962 : AIR1962All315 were relied upon. As
we have already indicated, the Supreme Court in two decisions has also taken the same
view on the question of judicial subordination of the statutory authorities exercising
judicial powers for the purpose of the Contempt of Courts Act. The next decision of the
Bombay High Court is a Full Bench decision in the case of Bapusaheb v. The State
MANU/MH/0144/1975 : AIR1975Bom143 . The Full Bench speaking through
Tulzapurkar, J. held -
"The officers on special duty appointed by the State Government in exercise of
the powers under section 3 of the Maharashtra Co-operative Societies Act 1960
under the Maharashtra Government notification dated 11-3-1969 are courts
within the meaning of the Contempt of Courts Act while discharging their duties
under the State Act".
The following pertinent observations having been made in the report
"Mainly two criteria have been laid down by the decided cases in order to
constitute the tribunal a court. In the first place, the tribunal or an authority
would be a court if it is given power to give a definitive judgment or a decision
which has finality and authoritativeness that would bind the party appearing
before it so far as the rights litigated before it are concerned and secondly, the
appointment of the tribunal or an authority as well as the source of its power
must be judicial power of the State coming to it by the statute itself.
The power of review and the inherent power enjoyed by a civil court cannot be
regarded as sine qua non for holding any tribunal to be a court.
Since the officers on special duty perform judicial functions and have been
empowered to tender definitive decisions decisions which have finality and
authoritativeness so as to bind the parties appearing before them qua their
rights, of course subject to appeal or review or revision that has been provided
under the Act and since the said officers on special duty are appointed by the
State Government under notification in exercise of the powers conferred by
See. 3 of the Mah. Co-op. Societies Act and they derive their authority to
dispose of the disputes judicially from the State directly under the Statute, such
officers on special duty satisfy both the criteria; and in that view, the said
officers must be held to be courts within the meaning of the Contempt of Courts
Act, while discharging their duties under the State Act".
We respectfully concur with the aforesaid view of the Full Bench of the High Court of
Bombay which is based on settled legal position. There is a later Full Bench decision of
the Bombay High Court in the case of S. D. Ghatge v. State MANU/MH/0046/1977 :
AIR1977Bom384 . Even in that case, Tulzapurkar, Actg. C.J. (as he then was), had to
examine the question whether the tribunal can be considered to be a court. That
question arose in the context of amended Article 227 pursuant to 42nd Amendment of
the Constitution wherein the word tribunal ' was deleted from that artic e. The following
observations were made by the Full Bench : -
"It follows that the High Court's power of judicial superintendence under the
amended Art. 227 certainly covers judgments of all courts meaning thereby all
regular civil and criminal courts constituted under the Hierarchy of courts
subject to its appellate or revisional jurisdiction but also extends to tribunals,
bodies or authorities, whatever be their label provided two conditions are
satisfied; (a) such tribunal, body or authority is basically a court i.e. it
performs judicial function of rendering definitive judgments having finality and
authoritativeness to bind the parties litigating their rights before it in exercise
of sovereign judicial power transferred to it by the State and (b) such tribunal,
body or authority is subject to High Court's appellate or revisional jurisdiction."
18 to 22. . x x x x x x x
23. It is now time for us to take the stock of the situation. The aforesaid discussion
projects the following picture. In order that an authority can be considered to be a
judicial authority it should be covered within the scope and ambit of the word 'court' as
employed by the Contempt of Courts Act and for that purpose the following tests must
be satisfied by such authority. (i) Nature of power exercised by the authority. The
power entrusted to the authority must be judicial power of the State, meaning thereby,
the authority must be enjoined to adjudicate upon the disputes between the parties.
There must be a lis between the contesting parties presented before the authority for
adjudication and decision. (ii) The source of the power must emanate from the statute
and must not be based merely on agreement between the parties. The power must
statutorily flow and must continue to inhere in the authority subject to the limitation
engrafted by the statute conferring such power. (iii) The manner of exercise of power
must partake of essential attributes of 'Court' though minor trappings or inconsequential
attributes may be absent. These essential attributes of the court would include right of
the contesting parties to represent their case not necessarily orally before the tribunal,
ascertainment by the authority of the disputed question of fact posed for its
consideration by means of evidence adduced by the parties to the dispute and often
with the assistance of argument by or on behalf of the parties on the evidence led
before the authority, if the dispute between them is a question of law, the submission of
legal arguments by the parties and the power of the authority to enforce attendance of
witnesses, production of documents etc. to-enable the authority to March 1957 under
the Act. Chapter 11 of the Act deals with authorities under the Act viz. authorities
constituted under the Act. Section 3 deals with establishment and constitution of works
committee. Section 4 deals with conciliation officers and section 5 deals with boards of
conciliation. Section 6 deals with courts of, inquiry and then comes section 7 which
provides for constitution of labour courts and enjoins and enables the appropriate
Government to constitute, by notification in the official gazette, one or more labour
courts for adjudication of industrial disputes relating to matters specified in the second
schedule and for performing such other functions as may be assigned to them under the
Act. In sub-section (3) of section 7 qualifications for being appointed as presiding
officer of the labour court are laid down which indicate that the concerned labour court
Judge may be either sitting or retired Judge of the High Court or District Judge or
Additional District Judge or may be one who has held any judicial office in India for not
less than seven years or who has been the presiding officer of a labour court constituted
under any Provincial Act for not less than five years. So far as tribunals are concerned,
under section 7A, their constitution has to be made by the appropriate Government by a
notification in the official gazette, for adjudication of industrial disputes relating to any
matter, whether specified in the second schedule or the third schedule and for
performing such other functions as may be assigned to them under the Act.
Qualifications for being appointed as presiding officer of the Industrial Tribunal are also
laid down which provide that a sitting Judge or a retired Judge of the High Court can be
a presiding officer of the tribunal or a District Judge or Additional District Judge who
has acted as such for a period of not less than three years, can also be appointed as
such, Section 78 deals with constitution of national tribunals. Central Government, by
the notification in the official gazette can appoint one or more national tribunals for
adjudication of industrial dispute which, in the opinion of the Central Government,
involve questions of national importance or are of such a nature that industrial
establishments situated in more than one State are likely to be interested in, or affected
by such disputes. No person can be appointed as a presiding officer of the national
tribunal unless he has or has been a Judge of the High Court., The next group of
relevant sections is found in chapter III which deals with reference of disputes to
boards, courts or effectively decide their dispute in a judicial manner. (iv) The resultant
or end product of the exercise of such power by the authority must result in a binding
decision between the parties concluding the lis between the parties so far as the
authority is concerned. The said decision must be definitive and must have finality and
authoritativeness. The decision rendered by such authority must dispose of the whole
matter by a finding upon the facts in dispute and an application of the law of the land to
the fact so found, including where required a ruling upon any disputed question of law.
24. We will have to judge the questions posed for our consideration in the light of the
aforesaid tests. For that purpose, we have to turn to the relevant statutory schemes
under which the concerned authorities function. We will first turn to the scheme of the
I.D. Act in connection with which rival submissions were submitted by the learned
counsel for our consideration. So far as the scheme of Bombay Industrial Relations Act
and the Gujarat Co-operative Societies Act were concerned, there was not much dispute
between the parties.
25. Scheme of the I.D. Act:- The Industrial Disputes Act, 1947 was enacted by the
Central legislature with a view to making provisions for the investigation and settlement
of industrial disputes and for certain other purposes as the preamble shows. The
legislation was calculated to ensure social justice to both employers and employees and
advance the progress of industry by bringing about the existence of harmony and
cordial relationship between the two parties of industry. Section 2 is dictionary clause.
We may refer to the relevant definitions contained in that clause. Clause (a) thereof
defines ,appropriate Government' to mean Central Government or State Government as
the case may be. Clause (aa) defines 'arbitrator' which includes an umpire. Clause (b)
defines 'award' to mean an interim or a final determination of any industrial dispute or
of any question relating thereto by any labour court, industrial tribunal or natiorial
industrial tribunal and includes an arbitration award made under section 10A. Clause (c)
defines 'Board' to mean a Board of Conciliation constituted under the Act. Clause (kkk)
defines 'labour court' to mean a labour court constituted under section 7. Clause (r)
defines 'Tribunal' to mean an industrial tribunal constituted under Section 7A and
includes an industrial, tribunal constituted before the 10th day of tribunals. Under sub-
section (1) of section 10, appropriate Government once having formed an opinion that
an industrial dispute exists or is apprehended, it may at any time, by order in writing,
refer the dispute to a Board for promoting a settlement thereof or may refer any matter
appearing to be connected with or relevant to the dispute to a court for inquiry or may
refer the dispute or any matter appearing to be, connected with or relevant to the
dispute, if it relates to any matter specified in the second schedule to a labour court for
adjudication. Sub-section (1A) of section 10 enables the Central Government to refer a
dispute of national magnitude to the national tribunal for adjudication. The aforesaid
provision of section 10 clearly indicates that once an industrial dispute is found to exist
or is apprehended by appropriate Government, it has to decide whether the dispute may
be ,referred for conciliation of the concerned authority or if it has reached such
magnitude that conciliation may not help, it has to be referred for adjudication to the
labour court, tribunal or national tribunal, as the case may be. There is a clear-cut
distinction between the reference for conciliation or promotion of settlement on the one
hand and reference for adjudication on the other. It goes without saying that the
dispute referred for settlement or for conciliation would involve exercise of convincing
and prompting parties to the dispute to amicably settle the dispute. Once that stage is
reached, it -is an agreement between the parties which would bring industrial peace
between warring camps. It is their own agreement which will remain binding to them.
No process of compulsory adjudication is involved therein. However, when a dispute is
referred for adjudication to the proper authority, may be labour court, industrial tribunal
or national tribunal, the canvass is spread wide open before the concerned authority to
enable the authority after hearing the concerned parties to adjudicate upon their
dispute. It would naturally involve element of compulsion and whether the parties
agreed to it or not, the adjudication and decision would be foisted upon them by
process of compulsory adjudication, subject to following up of the statutory procedure
laid down for such adjudication. It does not require any great effort to find out that the
process of adjudication enjoined upon the concerned authority under the Act runs quite
parallel to the process of adjudication of disputes -between-the warring parties as
undertaken by ordinary regular civil courts. May be, the scope and ambit of adjudication
and the power of compulsory adjudication may be wider so far as labour courts and
Tribunals under the Act are concerned. Still the essential requisite of compulsory
adjudicatory exercise of judicial power remains the same so far as the ordinary civil
courts are concerned on the one hand and the adjudicatory statutory authorities
constituted under the Act are concerned on the other. Then follows Chapter IV which
deals with procedure, powers and duties of authorities. Under section 11, it has been
provided that subject to any rules that may be made in this behalf, an arbitrator, a
board, court, labour court, tribunal or national tribunal shall follow such procedure as
the arbitrator or other authority concerned may think fit. Under sub-section (2) of
section 11, a conciliation officer or a member of a board or court or the presiding
officer of a labour court, tribunal or national tribunal may for the purpose of inquiry into
any existing or apprehended industrial dispute, after giving reasonable notice, enter the
premises occupied by any establishment to which the dispute relates. Sub-section (3)
vests in the board, court, labour court, tribunal or national tribunal, the same powers
which are vested in the civil court when trying a suit in respect of the matters
enumerated therein viz. (a) enforcing the attendance of any person and examining him
on oath; (b) compelling the production of documents and material objects; (c) issuing
commissions for the examination of witnesses and (d) in respect of such other matters
as may be prescribed, and it has been provided therein that every inquiry or
investigation by a board, court, labour court, tribunal or national tribunal shall be
deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the
I.P. Code. Under sub-section (5), a court, labour court, tribunal or national tribunal is
empowered to appoint one or more persons having special knowledge of the matter
under consideration as assessors to advise it in the proceeding before it. Sub-section
(6) lays down that all conciliation officers, members of board or court and presiding
officer of a labour court, tribunal or national tribunal shall be deemed to be public
servants within the meaning of section 21 of the Indian Penal Code; while as per sub-
section (7) thereof, they have been given full power to determine by and to whom and
to what extent and subject to what conditions, if any, costs are to be paid. As per sub-
section (8), every labour court, tribunal or national tribunal will be deemed to be civil
court for the purposes of sections 345, 346 and 348 of the Code of Criminal Procedure,
1973. It is of course , true that the provisions of section I I apply riot only to labour
court, in ' dustrial tribunal but also to arbitrators or board or court of inquiry. But that
does not mean that trappings of court which are invested in the labour court or tribunal
as per section 11 are in any way less effective. It may be that conciliation officer and
board of inquiry may also have those trappings. However, because they have no power
to adjudicate upon the dispute or lis between the contesting parties, they may fail in the
contest for being treated as a court or judicial authorities. But that result flows from the
statutory settings independent of section 11 and out of the fact that they are not meant
to adjudicate upon the dispute by resorting to compulsory adjudication but they are
meant to cater to the need for persuading the parties to amicably settle their disputes.
As per section 15, where an industrial dispute has been referred to a labour court,
tribunal or national tribunal for adjudication, it shall hold its proceedings expeditiously
and shall, within the period specified in the order referring such industrial dispute or
the further period extended under the second proviso sub-section (2A) of section 10
submit its award to the appropriate Government. As per section 16(2), the award of the
labour court or tribunal has to be in writing and has to be signed by the presiding
officer. Section 17 deals with publication of reports and awards. Sub-section (1) thereof
provides that report of a board or court together with any minute of dissent recorded
therewith, every arbitration award and every award of a labour court, tribunal or
national tribunal shall, within a period of thirty days from the date of its receipt by the
appropriate Government, be published in such manner as the appropriate Government
thinks fit. Sub-section (2) of section 17 lays down that subject to the provisions of
section 17A, the award published under sub-section (1) shall be final and shall not be
called in question by any court in any manner whatsoever. Thus, award of the labour
court or industrial court once published attains finality and binding character to such an
extent that it cannot be challenged in any court of the land.' Section 17A deals with
commencement of the award. As a fierce controversy centered around the provision of
this section, it is necessary to extract it in extension
"17A. (1) An award (including fan arbitration award) shall become enforceable
on the expiry of thirty days from the date of its publication under section 17
Provided that -
(a) if the appropriate Government is of opinion, in any case where the
award has been given by a labour court or tribunal in relation to an
industrial disputes in which it is a party; or (b). if the Central
Government is of opinion, in any case where the award has been given
by a national tribunal;
that it will be inexpedient on public grounds affecting national economy or
social justice to give effect to the whole or any part of the award, the
appropriate Government or as the case may be, the Central Government may,
by notification in the official gazette, declare that the award shall not become
enforceable on the expiry of the said period of thirty days.
(2) Where any declaration has been made in relation to an award under the
proviso to sub-section (1), the appropriate Government or the Central
Government may, within ninety days from the date of publication of the award
under section 17, make an order rejecting or modifying the award, and shall on
the first available opportunity, lay the award together with a copy of the order
before the legislature of the State, if the order has been made by a State
Government, or before Parliament, if the order has been made by the Central
Government.
(3) Where any award as rejected or modified by an order made under sub-
section (2) is laid before the Legislature of a State or before Parliament, such
award shall become enforceable on the expiry of fifteen days from the date on
which it is so laid; and where no order under sub-section (2) is made in
pursuance of a declaration under the proviso to sub-section (1), the award shall
become enforceable on the expiry of the period of ninety days referred to in
sub-section (2).
(4) Subject to the provisions of sub-section (1) and sub-section (3) regarding
the enforceability of an award, the award shall come into operation with effect
from such date as may be specified therein, but where no date is so specified, it
shall come into operation on the date when the award becomes enforceable
under sub-section (1) or sub-section (3), as the case may be".
Then follows section 18, which deals with persons on whom settlements and awards are
binding. Sub-section (1) provides that settlement arrived at by agreement between the
employer and workman otherwise than in the course of conciliation proceeding shall be
binding on the parties to the agreement; while sub-section (2) thereof lays down that
subject to the provisions of sub-section (3), an arbitration award which has become
enforceable shall be binding on the parties to the agreement who referred the dispute to
arbitration. As per sub-section (3), a settlement arrived at in the course of conciliation
proceedings under this Act or an arbitration award in a case where a notification has
been issued under sub-section (3A) of section 10A or an award of a Labour Court,
tribunal or national tribunal which has become enforceable shall be binding: -
"(a) all parties to the industrial dispute.
(b) all other parties summoned to appear in the proceedings as parties to the
dispute, unless the board, arbitrator, labour court, tribunal, or national tribunal,
as the case may be records the opinion that they were so summoned without
proper cause;
(c) where a party referred to in clause (a) or clause (b) is an employer his
heirs, successors or assigns in respect of the establishment to which the
dispute relates;
(d) where a party referred to in clause (a) or clause (b) is composed of
workmen, all persons who were employed in the establishment or part of the
establishment, as the case may be, to which the dispute relates on the date of
the dispute and all persons who subsequently become employed in that
establishment or part".
Section 19 deals with period of operation of settlement and awards. It lays down that
an award shall, subject to the provisions of this section remain in operation for a period
of one year from the date on which the award becomes enforceable under section 17A
provided that the appropriate Government may reduce the said period and fix such
period as it thinks fit. It is further provided that the appropriate Government may before
the expiry of the said period, extend the period of operation by any period not
exceeding one year at a time as it thinks fit, so however, that the total period of
operation of any award does not exceed three years from the date on which it came into
operation. Sub-section (4) of section 19 lays down that where the appropriate
Government, whether of its own motion or on the application of any party bound by the
award, considers that since the award was made, there has been a material change in
the circumstances on which it was based, the appropriate Government may refer the
award or a part of it to a labour court, if the award was that of a labour court or of a
tribunal, if the award was that of a tribunal or of a national tribunal for decision
whether the period of operation should not, by reason of such change be shortened and
the decision of labour court or the tribunal, as the case may be, on such reference shall
be final. Subsection (5) of section 19 lays down that nothing contained in sub-section
(3) shall apply to any award which by its nature, terms or other circumstances does not
impose, after it has been given effect to, any continuing obligation on the parties bound
by the award. As per sub-section (6), notwithstanding the expiry of the period of
operation under sub-section (3), the award shall continue to be binding on the parties
until a period of two months has lapsed from the date on which notice is given by any
party bound by the award to the other party or parties intimating its intention to
terminate the award. Chapter VI deals with penalties. Section 29 thereof provides for
penalty for breach of settlement or award and lays down that any person who commits
a breach of any term of any settlement or award, which is binding on him under the Act,
shall be punishable with imprisonment for a term which may extend to six months or
with fine, or with both and where the breach is a continuing one, with a further fine
which may extend to two hundred rupees for every day during which the breach
continues after the conviction for the first and the court trying the offence, if it fines the
offender, may direct that the whole or any part of the fine realised from him shall be
paid, by way of compensation, to any person who, in its opinion, has been injured by
such breach. Chapter VII deals with miscellaneous provisions. As per section 33(l)
status quo as to working conditions of employees pending the conciliation proceedings
before the a authorities or adjudication proceedings before the labour court or tribunal
or national tribunal wherein industrial dispute between the parties is on the anvil of
either conciliation proceedings or of adjudication proceedings, has to be maintained. As
per section 33(2), an application can be made by the employer to the concerned
authority before which the proceeding is pending for approval of the section of
discharging or dismissing the concerned workman in situations contemplated by the
said provisions. Subsection (3) thereof provides for proper applications to be made by
the employer ' in some cases for altering to the prejudice of such protected workman,
the conditions of service applicable to him immediately before the commencement of
such proceeding or for discharging or punishing whether by dismissal or otherwise,
such protected workmen in the circumstances contemplated by the said sub-section. As
per S. 33A, -a complaint may be made to the labour court or the tribunal or national
tribunal or any other authority by the employee aggrieved by contravention of S. 33.
Such complaint has to be made in writing in prescribed manner. Section 33B gives
power to the appropriate Govt. to withdraw any proceeding under the Act pending
before the concerned authority for adjudication. Section 33C deals with procedure for
recovery of money due from an employer. Sub-section (2) thereof enables the workman
to apply to the labour court for getting monetary - dues of the workman adjudicated
against the employer and for direction regarding payment thereof. Section 34 deals with
cognizance of offences by court and lays down that no court shall take cognizance of
any offence punishable under the Act or of the abetment of any such offence, save on
complaint made by or under the authority of the appropriate Government. Section 36
deals with representation of parties insofar as labour court, tribunal or national tribunal
are concerned and lays down by subsection (4) thereof that in any proceeding before
such authorities, a party to a dispute may be represented by a legal practitioner with the
consent of the other parties to the proceeding and with the leave of the labour court,
tribunal or national tribunal, as the case may be.
26. The aforesaid is the cross-section of relevant provisions of the I.D. Act. Now these
provisions clearly indicate that labour courts and industrial tribunals satisfy all the four
tests for qualifying them to be elevated to the status of 'court' as contemplated by See.
2 read with section 10 of the Contempt of Courts Act, 1971. We may now demonstrate
how these tests are satisfied.
(1) So far as nature of power is concerned, the statutory scheme clearly indicates that
the power of compulsory adjudication of disputes between the parties viz. workmen and
employer which but for the act, the State would have been enjoined to cater to in
discharge of its duties as a sovereign authority so as to avoid lawlessness and rule of
jungle and violent self-help, which may otherwise be resorted to by warring camps of
employees and employers, is statutorily invested in the labour courts and tribunals
constituted under State which flows to these authorities through their statutory
constitution. These authorities are entrusted with the task to judicially, determine the lis
between the parties and to adjudicate upon it by following judicial procedure. There are
series of decisions of the Supreme Court taking the view that industrial tribunals are
seats of justice. As early as in 1950, majority of the Supreme Court in Bharat Bank's
case MANU/SC/0030/1950 : (1950)NULLLL J921SC (supra), in terms held that tribunals
under the 'Act are discharging judicial functions . Same view is taken by the Supreme
Court in N.T.F. Mills Ltd. v. The 2nd Punjab Tribunal AIR 1957 SC 329. In para 23, the
following pertinent observations have been made : -
"So far as delegated legislation is concerned, abstract definitions of the
 difference between the judicial and the legislative functions have been offered
(see the distinction drawn by Mr. Justice Field in the Sinking Fund cases.
(Union Pacific Rly. Co. v. United States) (1879) 99 US 700 at p. 761 : 25 Law
Ed 496 at p. 516(D), but they are of little use when applied to a situation of
complicated facts. The function of a court is to decide cases and leading jurists
recognize that in the decision of many cases a court must fill interstices in
legislation. A legislator cannot anticipate every possible legal problem; neither
can he do justice in cases after they had arisen. This inherent limitation in the
legislative process makes it essential that there must be some elasticity in the
judicial process. Even the ordinary courts of law apply the principles of justice,
equity and good conscience in many cases; e.g. cases in tort and other cases
where the law is not codified or does not in terms cover the problem under
consideration. The industrial courts are to adjudicate on the disputes between
employers and their workmen etc. and in the course of such adjudication they
must determine the 'rights' and 'wrongs' of the claims made, and in so doing
they are undoubtedly free to apply the principles of justice, equity and good
conscience, keeping in view the further principle that their jurisdiction is
invoked not for the enforcement of mere contractual rights but for preventing
labour practices regarded as unfair and for restoring industrial peace on the
basis of collective bargaining. The process does not cease to be judicial by
reason of that elasticity or by reason of the application of the principles of
justice, equity and good conscience".
It is pertinent to note that once a reference is made under section - 10 by the
appropriate Government, the industrial tribunal or labour court, as the case may be, has
got to decide it and adjudicate upon it. Government has no power to cancel the
reference or supersede the reference once made (vide : State of Bihar v. D. N. Ganguly
MANU/SC/0111/1958 : (1958)IILL J634SC ). In the case of Gujarat Steel Tubes Ltd. v.
Its Mazdoor Sabha MANU/SC/0369/1979 : (1980)ILL J137SC , the Supreme Court
speaking through V. R. Krishna lyer, J. made the following observations in connection
with arbitrator appointed under section 10A of the Act -
"As the arbitrator under S. 10A of the Industrial Disputes Act has the power to
bind even those who are not parties to the reference or agreement and the
whole exercise under S. 10A as well as the source of the force of the Award on
publication derived from the statute, it is legitimate to regard such an arbitrator
now as part of the infrastructure of ,the sovereign's dispensation of justice,
thus falling within the rainbow of statutory 'tribunals amenable to judicial
review
If the arbitrator under See. 10A, as ruled by the Supreme Court, can be said to
be invested with sovereign power of dispensation of justice, the case for labour
courts and tribunals to be treated as repository of sovereign power of
dispensation of justice becomes even stronger.
27-28. In the case of Jai Bhagwan v. Management, A.C. Co-op. Bank Ltd.
MANU/SC/0332/1983 : (1984)ILL J52SC , a three-member Bench of the Supreme Court
speaking through 0. Chinnappa Reddy, J. held as under - -
"Raising an industrial dispute is a well recognised and legitimate mode of
redress available to a workman which has achieved statutory recognition under
the Industrial Disputes Act and this statute recognised modes of redress should
not be denied to a Workman because of the existence or availability of another
 remedy. An Industrial tribunal to whom a dispute has been referred for
adjudication cannot refuse to adjudicate upon it and surrender jurisdiction
which it undoubtedly has to some other authority. While the Government may
exercise their discretion in deciding whether to refer or not to refer a dispute
for adjudication, the Tribunal to whom the dispute has been referred has no
discretion to decide whether to adjudicate or not. Once a reference has been
properly made to an industrial tribunal, the dispute has to be duly resolved by
the industrial tribunal." It must, therefore, be held that the labour being
invested with judicial power of the State enabling them to resolve the disputes
between the parties and settling the lis between them.
2 9 . So far as the second test is concerned it is also satisfied. Labour Courts and
Industrial Tribunals obviously are constituted by the I.D. Act itself as seen from the
relevant sections. Only because the appropriate Government is enabled to specify the
concerned labour court or tribunal which can resolve such dispute, it cannot be said that
the constitution of these tribunals is made by the Government and not by the statute. In
fact, appropriate Government acting under the statute is having power coupled with
duty to specify the concerned tribunals once the industrial disputes are found existing
or apprehended. In that connection, Government merely acts as a statutory delegate
and nothing more. Consequently, the submissions of Mr. Gupta and Mr. V. B. Patel
placing strong reliance on sections 7, 7A and 10 to the effect that labour court and
tribunal can adjudicate upon only those disputes which are referred to by the
Government and only if the Government specifies the concerned tribunals or labour
courts and hence these powers make them creatures of appropriate Government and not
of the statute, cannot be countenance even for a moment. The authority and power to
adjudicate upon a dispute are entrusted to the labour court and tribunal by the Act and
not by the appropriate Government. Moment the dispute which is referred for
adjudication enters the precincts of the labour court or the tribunal as the case may be,
the entire Machinery for resolving this dispute in a judicial manner becomes activised
and the presiding officer of the labour court or the tribunal, as the case may be, is
statutorily bound to enter upon compulsory adjudication Process and must resolve the
dispute. Thus, the source of power to adjudicate so far as these tribunals and labour
courts are concerned, is the statute and statute alone. Even this aspect of the matter is
well settled by two decisions of the Supreme Court. The first in point of time is Bharat
Bank's case MANU/SC/0030/1950 : (1950)NULLLL J921SC (supra) where the majority of
the three-member Bench of the constitution Bench of the Supreme Court held that
power of adjudication given to the tribunal springs from the Act. Same view is also
taken in the later decision of the Supreme Court in the case of J. K. Iron and Steel Co.
v. Mazdoor Union MANU/SC/0056/1955 : (1956)ILL J227SC . Bose, J. speaking for the
Supreme Court in that case held as Disputes Act does not mean adjudication according
to the strict law of master and servant. An adjudicator's award may contain provisions
for settlement of a dispute, which no court could order if it was bound by ordinary law.
Industrial Tribunals are not fettered by these limitations. The scope of their adjudication
is much wider than that of an arbitrator making an award. All the same, wide as their
powers are, these tribunals are not absolute though they are not courts in the strict
sense of the term. They have to discharge quasi-judicial functions and as such are
subject to the overriding jurisdiction of the Supreme Court under Act. 136 of the
Constitution. Their powers are derived from- the statute that creates them and they
have to function within the limits imposed and to act accordingly provisions". .
It must, therefore, be held that source of power so far as labour courts and tribunals are
concerned, is the statute of I.D. Act and none other. Once having seen that labour
courts and industrial courts are creatures of the statute and they are invested with
judicial power of the State, mode of its exercise as required by the third test does not
present any difficulty. The statutory scheme in terms indicates that all the relevant
trappings of 'court' for deciding the list are available on a platter with these authorities.
All essential procedural provisions for the functioning of these judicial authorities are
made available. In that connection, we may usefully refer at this stage to the majority
decision of the Supreme Court in Bharat Bank's case MANU/SC/0030/1950 :
(1950)NULLLL J921SC (supra) wherein it has been clearly laid down that industrial
tribunals functioning under the 1. D, Act have all the necessary trappings of courts of
justice, and that functions and duties of the industrial tribunals are very much like those
of a body discharging judicial functions, although it is not a court in the technical sense
of the word, meaning thereby, they are not courts stricto sensu. This aspect is further
highlighted by a later decision of the Supreme Court in the case of J. K. Iron and Steel
Co. MANU/SC/0056/1955 : (1956)ILL J227SC (supra). Bose, J. speaking for the
Supreme Court after referring to the decision of the Supreme-Court in
MANU/SC/0030/1950 : (1950)NULLLL J921SC , made ' the following observations in
para 24 of the report: -
Now the position in the present case is this. The tribunals are directed by S. 7,
Industrial Disputes Act to adjudicate industrial disputes "in accordance with the
provisions of the Act and section 11 directs them to follow such procedure as
may be prescribed'. The procedure for the Uttar Pradesh Tribunals is laid down
by the U.P. State Industrial Tribunal Standing Orders, 1951. Very broadly it
follows the pattern of the civil Courts. Once the reference is made by
Government, the tribunal has to take the pleadings. of the parties in writing and
to draw up issues. Then it takes evidence, hears arguments and finally
pronounces its judgment in open Court. It is evident from this that though
these tribunals are not bound by al - I the technicalities of civil Courts, they
must nevertheless follow the same general pattern.
Now the only point of requiring pleadings and issues is to ascertain the real
dispute between the parties to narrow the area of conflict and to see just where
the two sides differ. It is not open to the tribunals to fly off at a tangent and
disregarding the pleadings, to reach any conclusions that they think are just
and proper."
It, therefore, cannot be gainsaid that industrial tribunals and labour courts functioning
under the Act while called upon to adjudicate upon an industrial dispute and to settle lis
between the employer and employees have to follow the judicial procedure of
adjudication of such disputes and are armed with all the essential attributes of the
Court. Manner of exercise of power is without doubt judicial. Thus, the third test is also
complied with.
30. That takes us to the fourth test which relates ' to the end-product. Once the labour
courts and industrial courts which are creatures of the statute and have been invested
with judicial power of the State to resolve the dispute between employer and employees
try to resolve the same by following the gamut of proceedings in a judicial manner, the
end product which results is the award which is final and binding between the parties.
Not only it is final and binding between the parties, but as enjoined by section 18, it is
final and binding even to the successors, heirs and assigns of the employers as well as
to those workmen who might subsequently become workmen and may not be workmen
at the relevant time when the dispute is resolved. It is true that as per section 17 read
with section 19, period of operation of the award can be modulated by appropriate
Government. But that makes no difference to the aspect of finality and binding character
of the award, As per section 19(6), even after expiry of the period of operation of the
award, it would remain binding to the concerned parties and their successors till the
award is terminated by giving notice. Consequently, finality of the award which results
out of adjudicatory process is of all pervasive nature and it clings to the concerned
parties even after statutory period of its operation is over.
3 1 . It is now time to turn to S. 17A on which great store was laid by the learned
counsel Mr. Gupta and Mr. V. B. Patel for the respondents. It was submitted that under
certain circumstances, appropriate Government if it is a party to the dispute can either
cancel or modify the award and Central Government can equally do so in case of award
of national tribunal even though it may not be a party to the dispute and, therefore, the
end-product by way of award even after adjudication cannot be said to be a decisive
and determinative conclusion of the proceedings. It is not possible to agree with this
contention for obvious reasons. Firstly, so far as adjudication of disputes between
employees and employer other than in cases in which appropriate Government is party
viz. as employer, is concerned, adjudication procedure is complete moment the award is
pronounced by the Labour Court or the tribunal as the case may be. Government has no
authority or power to tinker with the award. It has got to publish it within the period
allowed by the statute. Even this aspect of the matter is completely covered by the
Supreme Court decision rendered by the majority in Bharat Bank's case
MANU/SC/0030/1950 : (1950)NULLLL J921SC (supra). In the case of Sirsilk Ltd. v.
Government of A.P. MANU/SC/0140/1963 : (1963)IILL J647SC , Wanchoo, J. speaking
for the Supreme Court having considered Ss. 17 and 17-A of the I. D. Act, made the
following pertinent observations: -
"Reading Ss. 16 and 17-A together, it is no doubt clear that the intention
behind S. 17(l) is that a duty is cast on the Government to publish the award
within 30 days of its receipt and the provision for its publication is mandatory
and not merely directory.
Though S. 17(l) is mandatory and the Government is bound to publish the award
received by it from an industrial tribunal, the situation arising in a case where the
settlement between the parties has been arrived at after the award has been sent by the
tribunal to the Government but before its publication is of exceptional nature. Same
view has been taken by the Supreme Court in N.T.F. Mills Ltd. v. The 2nd Punjab
Tribunal AIR 1957 SC 329 (supra). Secondly, even though Government has power to
modulate the time regarding enforcement of award as laid down by section 19 of the
Act, the award remains award of the concerned tribunal and remains binding to the
parties. Even this aspect of the matter has been settled long back since the time of the
Federal Court in the case of Robert Mclean and Co. Ltd. v. A. T. Das Gupta
MANU/FE/0013/1949 : (1950)52BOMLR179 Kania, C.J. made the following observations
:-
"The scheme of the Industrial Disputes Act, 1947 is that the Tribunal
constituted under the Act has to determine the dispute referred to it. It has
jurisdiction to determine and make the award up to the date it passes its order.
The award so made acquires a binding effect on the order of the Government
made under S. 15. The power to make the award operative for a period not
exceeding one year thereafter, which is given to the Government under S. 19(3)
of the Act, is an independent power. Such extension does not in any way affect
the jurisdiction or power of the Tribunal. There is no justification for reading
the provisions found in Ss. 10, 15 and 19 of the Act as providing one maximum
period of twelve months. The maximum period of one year mentioned in S.
 19(3) starts from the date of the award and does not cover the period
antecedent to the award."
In the case of L. 1. C. of India v. D. J. Bahadur MANU/SC/0305/1980 : (1981)ILL J1SC ,
majority of the Supreme Court speaking through V. R. Krishna Iyer, J. has made the
following relevant observations, in the light of the scheme of the Act about binding
nature of the award : -
"After expiry of the specific period contractually or statutorily fixed as the
period of operation of an award or settlement, the same does not become
honest but continues to be binding. Law abhors vacuum. Until a new contract or
award replaces the previous one, the former settlement or award will regulate
the relations between the parties. The precedents on the point, the principles of
industrial law the constitutional sympathy of Part IV and the sound rules of
statutory construction converge to the same conclusion."
Thirdly, even in cases where appropriate Government is a party to the industrial dispute
as an employer, where in a given contingency, it has been given power to suggest
modification or rejection of the award or even in a case where the Central Government
can suggest likewise in case of awards having national repercussion in a given
contingency as laid down by S. 17-A, the ultimate modification has to be made by the
Parliament after procedure laid down by S. 17(3) is followed nonetheless the original
award would remain the award of the concerned tribunal. Merely because an
independent right has been reserved by the legislature unto itself to approve
modification or rejection of the award as suggested by the appropriate Government, it
does not mean that the modified award in any manner ceases to be award of the
concerned Tribunal. Existence of independent power of modification or rejection does
not contra-indicate finality and binding nature of Such award as that springs from the
statutory scheme envisaged not by Ss. 11A (2) or (3) but by 17(2) read with S. 19(6)
of the Act. So far as this aspect of the matter is concerned, we may usefully refer to
majority decision in Bharat Bank's case MANU/SC/0030/1950 : (1950)NULLLL J921SC
(supra). The Supreme Court while considering the pari materia scheme of the then
existing S. 15 of the I.D. Act which is now replaced by S. 17A, in terms held that
notwithstanding such a provision, the finality and binding character of the award is not
at all whittled down. While deciding as aforesaid, the majority of the Supreme Court
followed the decision in Rex v. Electricity Commissioner, London Electricity Joint
Committee Co (1924) 1 KB 171. We have already extracted the said passage in earlier
part of this judgment. It must, therefore, be held that despite exercise of the statutory
power in S. 17A(2) and (3) by the Parliament in a given contingency the proceeding
before adjudicating authority would remain judicial proceeding subject to confirmation
or approval in the limited type of cases as envisaged by S. 17A(2) and (3) and would
not detract from the binding character of such decisions rendered by the Labour Court
and industrial tribunal. Consequently, it must be held that even the fourth test is fully
satisfied in the present case. It must, therefore, be held that the labour courts and
industrial tribunals functioning under the I.D. Act are Courts within the meaning of Ss.
2 and 10 of the Contempt of Courts Act. Before parting with this discussion, we may
refer to one more aspect of the matter as laid down by the Supreme Court in the case of
Premier Automobiles v. K. S. Wadke MANU/SC/0369/1975 : (1975)IILL J445SC . The
functions discharged by Industrial Courts and Labour Courts under the Act are of
peculiar nature and so far as such Courts are concerned, they have exclusive
jurisdiction. Thus, Civil Court's jurisdiction is impliedly ousted qua those disputes,
which can be resolved only through adjudicatory machinery of I.D. Act. Untwalia, J.
speaking for the Supreme Court has made the following pertinent observations in
connection with the jurisdiction of industrial tribunal and Labour Court under I.D. Act
vis-a-vis jurisdiction of the ordinary Civil Courts
"the principles applicable to the jurisdiction of the Civil Court in relation to an
industrial dispute may be stated thus : -
(1) if the dispute is not an industrial dispute, nor does it relate to
enforcement of any other right under the Act the remedy lies only in
the Civil Court.
(2) If the dispute is an industrial dispute arising out of a right or
liability under the general common law and not under the Act, the
jurisdiction of the Civil Court is alternative, leaving it to the election of
the suitor concerned to choose his remedy for the relief which is
competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an
obligation created under the Act, then the only remedy available to the
suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under
the Act such as Chapter VA then the remedy for its enforcement is
either S. 33C or the raising of an industrial dispute, as the case may
be".
It is true that as laid down by the Supreme Court in Patna Electric Supply Co. v. P. Y. S.
W. Union MANU/SC/0128/1959 : (1959)IILL J366SC , in appropriate cases, industrial
adjudication may impose new obligations on the employer in the interest of social
justice and with the object of securing peace and harmony between the employer and
his workmen and full co-operation between them. It does not mean that Civil Court's
jurisdiction would not get excluded in cases where Civil Court would be competent to
adjudicate upon these disputes wherein common law rights are involved. Even such
types of disputes which are ordinarily dealt with by ordinary Civil Court will also get
excluded on the principle of implied exclusion as laid down by the Supreme Court in
MANU/SC/0369/1975 : (1975)IILL J445SC . May be that Labour Court may be able to do
much more than an ordinary Civil Court can do. But that does not detract from the
binding nature of Labour Courts or tribunal's decision and-the nature of judicial power
exercised by them.
3 2 . Before closing discussion on this aspect, we also refer to two decisions of the
Supreme Court. In Vishwarnitra Press v. Workers of Vishwamitra Press
MANU/SC/0052/1952 : (1953)ILL J184SC , Bhagwati, J. speaking for the Supreme Court
held : -
"The Industrial Tribunal is a Court within the meaning of S. 10, U. P. General
Clauses Act."
In the case of Grindlays Bank v. Central Govt. Industrial Tribunal MANU/SC/0308/1980
: (1981)ILL J327SC a Division Bench of the Supreme Court consisting of Y. V.
Chandrachud, C.J. and A. P. Sen, J. was concerned with the question whether the
Tribunal under the I.D. Act had power to set aside an ex parte award. It was observed
:--
"A review is on merits when the error sought to be corrected is one of law and
 is apparent on the face of the record. Obviously, when a review is sought due
to a procedural defect, the inadvertent error committed by the Tribunal must be
corrected ex debito Justitiae to prevent the abuse of its process, and such
power inheres in every Court or tribunal."
Mr. Gupta, however, placed strong reliance on the observations found in para 7 of the
report to the effect that under Clause (d) of subs. (3) of S. 11, the Tribunal or such
other authorities have also the same powers as are vested in civil Courts under the Code
of Civil Procedure 1908 in respect of such other matters as may be prescribed. Although
the Tribunal or other authorities specified in S. 11 are not Courts but they have the
trappings of a Court and they exercise quasi-judicial functions. Mr. Gupta wanted to
submit that the aforesaid observations indicate that the Supreme Court has ruled that
the tribunal and other authorities are not Courts. However, it should be appreciated that
the observations of the Supreme Court in that decision regarding the tribunals not being
Courts have to be read in the light of the earlier observations which centre round the
discussion regarding some of the powers of Civil Court under Code of Civil Procedure
being invested in the tribunals under S.- 11(3). Thus, the observations of the Supreme
Court in the last part of para 7 when they refer to Courts would clearly mean that the
tribunals are not Courts as functioning under the Code of Civil Procedure as such Courts
were already referred to in earlier part of that para and in continuation of these
observations, the said observation has been made. It is not in dispute that tribunals
under the I.D. Act are not functioning under the Code of Civil Procedure as regular Civil
Courts. But that does not mean that they are riot Courts within the meaning of
Contempt of Courts Act, if all the basic-requirements of elevating them to that status are
met with by the statutory scheme under which they function. It must, therefore be held
that so far as industrial tribunals and Labour Courts constituted under the Industrial
Disputes Act are concerned, they are Courts within the contemplation of S. 2(b) and S.
10 of the Contempt of Courts Act, 1971. However before parting with this topic, we
must deal with certain ancillary contentions canvassed on behalf of the respondents.
33. Mr. Gupta placed strong reliance on the observations found in the law of Industrial
Disputes by Mr. V. B. Patel, Third Edition, Vol. I in his commentary below Ss. 7 and 7A
to the effect: -
"Under S. 7(2), the Govt. has power to appoint a person to a Labour Court and
has also power to define and limit the period of his tenure. The power to
appoint carries with it, when appointing a presiding officer to a Labour Court
u/s. 7(2), the power to fix the period during which the person so appointed will
function as the Labour Court; and it is permissible to extend the period of the
presiding officer provided that power is exercised before the expiry of the
period for which appointment was made. On the expiry of the period of his
tenure the adjudicator becomes functus officio; and an award made after the
expiry of the time for which he is appointed is a nullity. The Govt. has no
authority to extend the time ex post facto.
The State Government constituting a tribunal under S. 7A of the Act has power
to constitute a tribunal and also the power to define and limit the period during
which that Tribunal can function. It can appoint it for a limited time or for a
particular case or cases as it thinks fit and as the situation in a particular area
or a particular case demands. If a person is appointed for a limited duration to
act as a tribunal it does not mean that the tribunal also was constituted for a
limited duration."
It was submitted by Mr. Gupta that when the State has, got such power, it cannot be
said that such tribunals are substitutes of ordinary Civil Courts. It is difficult to
appreciate this submission of Mr. Gupta. Even if tribunals or Labour Courts are
constituted for a given contingency, once they are so constituted and once the disputes
are referred to them for adjudication, the awards which result as a consequence of such
adjudication cannot but be said to be result of exercise of judicial process by tribunals
invested with judicial power of the State. It is not as if that judicial power of the State
cannot be entrusted for a given limited period. It is entrustment which matters and not
duration thereof. Consequently , this contention has to b,e repelled.
34. Placing reliance on S. 7 of the I.D Act, Mr. Gupta vehemently contended that the
tribunals appointed under the said section are more or less ad hoc tribunals and are
presided over by persona designata. In our view, this contention is totally besides the
point as even if tribunals are appointed for a limited period, it is the nature of the
function which is carried on by the tribunals that will be relevant for deciding whether
tribunals are judicial tribunals or not and whether are invested with judicial powers of
the State or not.
3 5 . Mr. Gupta next contended that under S. 36 of the 1. D. Act only in limited
contingencies, legal practitioners are permitted to appear before the Labour Court and
Industrial Court. Even this contention does not advance the case of Mr. Gupta. It is not
as if that permission granted to the advocates to appear or right given to the advocate
to appear before an authority is a determinative factor for judging whether authority
concerned is a judicial authority or not. It cannot also be gainsaid that advocates
functioning under the Advocates Act are not repository of judicial power of the State so
that their presence as of right would invest the authority before whom they appear with
the judicial power of the State and their absence would negate such power, in the
concerned authority. Sub-s. (4) of S. 36 even contemplates a contingency under which
legal practitioners can appear before the Labour Courts and Industrial Tribunals.
3 6 . Mr. Gupta and Mr. V. B. Patel next contended that labour courts and industrial
tribunals have no power of review under 0. 47, R, 1 of the C.P. Code nor have they
inherent power under S. 151 of the C. P. Code. It is obvious that these authorities are
not full fledged Civil Courts governed by the provisions of the' Code of Civil Procedure.
Consequently, some of the powers of regular Civil Court may not inhere in them. But
that does not mean that if all the essential attributes of Civil Court are found applicable
to these authorities and if they are invested with judicial power of the State and if they
decide and adjudicate upon the matters in dispute between the parties in an objective
and judicial manner, they cannot be considered to be judicial authorities covered under
the wide; sweep of connotation of the word 'Court" as found in the Contempt of Courts
Act.
3 7 . Reliance placed by Mr. Patel as intervener for the respondents on the ratio of
decision of MANU/SC/0187/1968 : 1969CriL J1064 also cannot advance the case of the
respondents. In that case, the Supreme Court considered the provisions of the
Maharashtra Co-operative Societies Act whereunder the Registrar's nominee was held
not to be a Court under S. 195, C. P. Code. The clinching circumstance which was noted
by the Supreme Court for coming to this conclusion was that under that Act, the
nominee exercising his power to make award under S. 96 of the Maharashtra Act
derived his authority not from the statute but from the Registrar in his individual
discretion. The powers so invested were liable to be withdrawn. He was, therefore,
found not to have been invested with judicial power of the State. He was merely a
statutory arbitrator for arbitrating upon the dispute referred to him. We fail to
appreciate how that decision can be of any relevance to the facts of the present case. As
we have already observed earlier, once the reference is made by appropriate
Government to the concerned Labour Court or industrial tribunal for resolution of the
industrial dispute between the parties, that reference has got to be decided and
adjudicated upon by the concerned Labour Court or the tribunal. It cannot be
superseded by the Government thereafter. consequently, there is no comparison
between the scheme of the Maharashtra Co-operative Societies Act examined by the
Supreme Court in the aforesaid -decision and the statutory scheme with which we are
concerned.
38. Mr. Gupta's submission that appropriate Government has been given power under
S. 33-B to withdraw or transfer any proceeding under the Act pending before the
concerned authority for adjudication and to transfer the same to any other tribunal or
national tribunal for disposal of the proceeding would detract from the judicial character
of these authorities, is also without any substance. Merely because a power is given to
the appropriate Government to transfer proceedings from one tribunal to another or
from one Court to another would not make any slightest difference in the nature and
character of the power exercised by the concerned tribunal while adjudicating any such
transferred proceedings. It must be kept in view that power to transfer proceeding does
not include power to supersede the reference or to withdraw the reference. Reference
once made for adjudication of industrial dispute by the appropriate Government has got
to be decided by the concerned authority, may be, the authority to which the reference
is made initially, or the Labour Court and Industrial Court to which proceedings are
transferred for adjudication.
39. We now turn to the other side of the picture. We are also required to consider
whether the Labour Courts and tribunals functioning under the Bombay Industrial
Relations Act 1946 are Courts as contemplated by the Contempt of Courts Act, 1971 or
not. For answering this question, the relevant scheme of the Bombay Industrial
Relations Act, 1946 will have to be scanned with a view to finding out whether the basic
requirements as culled out by us earlier are satisfied by these authorities or not.
40. Scheme of BIR Act This Act is intended to provide for regulation of the relations of
employees and employers in certain matters, to consolidate and amend the law relating
to the settlement of industrial disputes and to provide for certain other purposes. S 3
which is definition clause may be noticed at the outset. Sub-section (6) thereof defines
'award' to mean any interim, final or supplementary determination in an arbitration
proceeding of any industrial dispute or of any question relating thereto. Industrial Court
is defined in sub-s (16) to mean the Court of industrial arbitration constituted under S.
10. Sub-s. (1~) defines 'industrial dispute' to mean any dispute or difference between
an employer and employee or between employers and employees or between employees
and employees and which is connected with any industrial matter. Subsection (21)
defines 'Labour Court' to mean a Labour Court constituted under S. 9. Chapter 11 deals
with authorities to be constituted or appointed under the Act. S. 8 thereof deals with
labour officers and assistant labour officers;
While S. 9 deals with constitution of Labour Courts and states that the State
Government shall, by notification in the Official Gazette, constitute one or more Labour
Courts having jurisdiction in such local areas as may be specified in such notification
and shall appoint persons having the qualifications specified in sub-section (2) to
preside over such Courts. S. 10 enjoins the State Government to constitute a Court of
industrial arbitration. As per subsection (2) thereof, the Industrial Court shall consist of
three or more members, one of whom shall be its president. As per sub-section (4)
thereof, every member of the Industrial Court shall be a person who is or has been a
judge of a High Court or is eligible for being appointed a judge of such Court or has
presided over a Labour Court for not less than ten years. As per the first proviso to sub-
section (4), one member may be a person not so eligible if in the opinion of the State
Government he possesses expert knowledge of industrial matters. As per S. 27A, save
as provided in Ss. 32, 33 and 33A, no employee shall be allowed to appear or act in any
proceeding under the Act except through the representative of employees. As per S. 30,
subject to the provisions of S. 33A, the persons or institutions mentioned therein are
entitled to a pear in the proceedings under the Act, the first amongst them, being a
representative union for such industry. As per S. 33, notwithstanding anything
contained in any other provision of the Act, an employee or a representative union shall
be entitled to appear through any person, (a) in all proceedings before the Industrial
Court; (aa) in all proceedings before a wage board and (b) in proceedings before a
Labour Court for deciding whether a strike, lock-out, closure or stoppage or change or
an order passed by an employer under the standing orders is illegal As per S. 33A, in
any dispute between the employees and employees referred to arbitration of a Labour
Court or the Industrial Court under S. 72 all persons who are parties to the dispute shall
be entitled to appear and act in the proceedings. Chapter 9 deals with joint committees
of employees and registered union for the industry for the local area. Chapter 9A deals
with joint management councils. Chapter 10 deals with conciliation proceedings.
Chapter 11 deals with arbitration and then comes chapter 12 which deals with Labour
Courts. S. 77 lays down that the territorial jurisdiction of Labour Courts shall extend to
the local areas for which they are constituted. S. 78 defines power of the Labour Court
to decide a dispute as mentioned therein. It is necessary to extract the said provision as
under :-
A Labour Court shall have power to decide-
(a) dispute regarding
(i) The propriety or legality of an order passed by an employer
acting or purporting to act under the standing orders;
(ii) The application and interpretation of standing orders;
(iii) any change made by an employer or desired by an
employee in respect of an industrial matt e*r specified in
Schedule III and matters arising out of such change;
(b) industrial disputes-
(i) referred to it under S. 71 or 72;
(ii) in respect of which it is appointed as the arbitrator by a
submission;
(c) whether a strike, lock-out, closure, stoppage or any change is
illegal under this Act".
Section 79 deals with commencement of the proceedings before the Labour Court and
provides that proceedings before a Labour Court in respect of disputes falling under
Clause (a) of paragraph A of sub-section (1) of S. 78 shall be commenced on an
application made by any of the parties to the dispute, a special application under sub-s.
(3) of S. 52 or an application by the labour officer or a representative -union and
proceedings in respect of a matter falling under Clause (c) of the said paragraph A on
an application made by any employer or employee directly affected or the Labour
Officer or a representative union. Labour Court has also power to condone delay in
filing applications* under S. 79. Thereafter follows sections pertaining to the procedure
to be followed by the Labour Court in inquiries held pursuant to S. 79. As per section
80D, the judge presiding over the Labour Court has himself to record minutes of the
proceedings in his own hand, embracing the material averments made by the parties
affected and the material parts of the evidence. The decision has to be signed by him
and has to set forth the grounds on which it is based. S. 81 empowers the labour court
to refer question of law to the Industrial Court for decision. As per S. 83, in respect of
offences punishable under the Act, a Labour Court has all the powers under the Code of
Criminal Procedure of a Magistrate of the First Class for holding trials in a summary
manner. S. 83A provides that a legal practitioner is not entitled to appear before labour
court on behalf of any party in any proceeding other than proceeding in connection with
an offence under the Act, except with the permission of the Court. S. 84 provides for
appeal to the Industrial Court against various decisions of the Labour Court.S. 85 gives
superintending jurisdiction of the Industrial Court over the Labour Court which runs
parallel to the provisions of Art. 227 of' the Constitution so far as High Court is
concerned in connection with subordinate Courts. S. 85 lays down that except as
otherwise provided by the Act, no decision, award or order of a Labour Court shall be
called in question in any proceeding in any Civil or Criminal- Court. S. 86A deals with
Labour Court's power to award cost. Chapter 13 deals with Court of industrial
arbitration and section 87 lay down duties of Industrial Court. Amongst those, the
Industrial Court has power to decide statutory appeals provided under various
provisions of the Act. S. 88 deals with the powers of the Industrial Court in appeal
which ,may extend to confirm, modify, add to or rescind any decision or order appealed
against. In respect of offences punishable under the Act the Industrial Court has all the
powers of the High Court under the Code of Criminal Procedure. S. 90 empowers the
wage board to refer to the Industrial Court any point of law arising in any proceedings
for decision. Sub-Section (2) of S . 90 provides Mat a civil or criminal Court may refer
any matter or any issue in any suit, criminal prosecution or other legal proceeding
before it relating to an industrial dispute to the Industrial Court for decision. Sub-
section (3) empowers the State Government to refer to Industrial Court any point of law
arising in any proceedings held under the Act. Industrial Court is competent to decide
such reference only in open Court and with the concurrence of a majority of the
members of the Court present at the hearing of reference. S. 92. deals with procedure
before Industrial Court which will be regulated by regulations consistent with the
provisions of the Act and the rules made there under. Such regulations may also
provide for the formation of Benches consisting of one or more of its members and the
exercise by each such Bench of the jurisdiction and powers vested in it. S. 93 deals with
execution of order as to cost as passed by the Industrial Court. S. 94 lays down binding
character of the order, decision or award of the Industrial Court. S. 95 lays down that
the order of the Industrial Court shall be final, except on review. S. 95A provides that
law declared by the Full Bench of the Industrial Court shall be recognised as binding
and shall be followed in all proceedings under the provisions of the Act. Chapter 16
deals with penalties in connection with diverse matters enumerated in this chapter. S.
115 provides for binding nature of the orders of the Labour Court and wage board. It
lays down that -
"An order or decision of a wage board or Labour Court against an employer
shall bind his successors-in-interest, heirs and assigns in respect of the
undertaking as regards which it is made or given and such order or decision
against a registered union shall bind all employees in the industry in 'the local
 areas whose representative, the said union is".
Section 115B deals with powers of the Labour Court or Industrial Court to interpret or
construe its award when the question pertaining to the same arises and is referred to it
for decision. Section I I 6A provides for procedure for modification of the award in lieu
of termination and entities the concerned parties to apply to the Industrial Court for
modification of its award after expiry of the period specified in sub-section (2) thereof.
Section 118 clothes the authority with powers of regular Courts in respect of proof of
facts by affidavits, summoning and enforcing the attendance of any person and
examining him on oath, compelling the production of documents and issuing
commissions for the examination of witnesses. Sub-section (4) thereof empowers the
wage board, Industrial Court or Labour Court to call upon any of the parties to furnish
in writing and in such form as it may think, proper, any information which it considers
relevant for the purpose of any proceeding before it. Section 118B deals with
consequences of non-appearance of parties before the Industrial Court or Labour Court
in spite of notice of hearing having been served upon it. In such eventualities, the
concerned Court is empowered either to adjourn the hearing of the matter or to proceed
ex parte and make such award as it thinks fit, Section 119 provides, amongst others,
that a judge of the Labour Court, Industrial Court or member of the staff of such Courts
shall be deemed to be public servants within the meaning of Section 21 of the I.P.
Code. Section 119A deals with contempt of Industrial Court, Labour Court, Courts and
wage boards relating to confusion to produce documents etc. Section 119B deals with
other kinds of contempt of Industrial Court, Labour Courts and wage boards. Section
119C empowers the Industrial Court or Labour Court or wage board to decide all
matters arising out of the industrial matter or dispute referred to them for decision
under any of the provisions of the Act. Section 119D entitles the Labour Court,
Industrial Court or wage board to pass interim orders which it may consider just and
proper.
41. The aforesaid is the cross-section of the relevant provisions of the Act. A mere look
at them leaves no room for doubt that the Industrial Court and Labour Court functioning
under the BIR Act satisfy all the four tests for deciding whether these authorities are
Courts within the competition of the Contempt of Courts Act, 1971 or not.' To
recapitulate, the first test is about entrustment of the judicial power of the State. The
way these authorities decide the disputes between employers and employees brought
before them by applications and the way these decisions are definitive and
determinative in character provide sufficient pointer to the fact that they are entrusted
with the judicial power of the State. So far as the second test is concerned, they are
statutory authorities under the Statute in question. So far as the third test is concerned,
they have all the main trappings of the regular Courts, Labour Court is moved by
applications under Section 79 within the prescribed period of limitation. These
applications are to be dealt with in a judicial manner. The statute provides all the basic
procedural machinery for enforcement of attendance of witnesses and for conducting of
the trials effectively. Under these circumstances, even the third test is satisfied. So far
as the last test is concerned, it is obvious that decisions rendered by the Labour Court
and the Industrial Court in appeal have been given finality as laid down by the statute
and they cannot be questioned in any Court. Even power of review is given to the
Industrial Court. Consequently, the fourth requirement of capacity for passing final
judgments and orders is also satisfied in the present case. Consequently, it must be
held that Labour Courts and Industrial Courts functioning under the BIR Act are Courts
within the meaning of Section 2 read with Section 10 of the Contempt of Courts Act,
1971.
42. That leaves out the consideration of the last question referred to us for decision.
That pertains to the scope and ambit of the powers of Registrar's nominees and
Cooperative Tribunal functioning under the Gujarat Co-operative Societies Act, 1961.
That will require us to consider the scheme of the Gujarat Co-operative Societies Act,
1961.
43. Scheme :- Gujarat Co-operative Societies Act, 1961 is an Act to consolidate and
amend the law relating to co-operative societies in -the State of Gujarat. Section 2(17)
defines Registrar ' to mean a person appointed to be the Registrar of Co-operative
Societies under the Act and includes to the extent of the powers of the Registrar
conferred on any other person under the Act such person and includes an Additional or
Joint Registrar. Sub- section. (23) defines tribunal ' to mean the Gujarat State' CO-
operative Tribunal constituted under the Act. Chapter 9 deals with procedure for
deciding disputes. Section 96 of the Act empowers the Registrar to decide any dispute
touching the constitution, management or business of a society. Section 97 deals with
period of limitation, in which such dispute is to be raised. As per Section 98, if the
Registrar is satisfied that any matter, referred to him is a dispute, within the meaning of
Section 96, the Registrar shall, subject to the rules, decide the dispute himself, or refer
it for disposal to a nominee, or a board of nominees, appointed by the Registrar.
Section 99 deals with procedure for settlement of disputes and power of Registrar, his
nominees or board of nominees. The Registrar, his nominees or the Board of nominees,
hearing a dispute under Section 98 have to hear the dispute in the manner prescribed
and have power to summon and enforce attendance of witnesses including the parties
interested or any of them and to compel them to give evidence and to compel the
production of documents by the same means and as far as possible in the same manner
as provided in the case of civil Court by the Code of Civil Procedure, 1908. Sub-section
(2) of Section 99 provides that except when a dispute involves complicated question of
law or fact, no legal practitioner in his capacity as a legal practitioner or as a person
holding a power of attorney shall be permitted to appear on behalf of any party at the
hearing of a dispute. Section 130 empowers Registrar or his nominee or the board of
nominees to issue order of attachment before award. As per Section 101, Registrar or
his nominee or the Board of nominees, after giving a reasonable opportunity to the
parties to the dispute to be heard, is empowered to make award on the dispute and also
to provide for meeting expenses incurred by the parties to the dispute in connection
with the proceedings and fees and expenses payable to the Registrar or nominee or the
board of nominees. Section 102 provides for appeal to the Tribunal within two months
of the decision or order under Section 101 or 100 as the case may be. Section, 103
provides for procedure for recovery of money as ordered under Section 101. Section
150 enjoins the State Government to constitute' a tribunal called Gujarat State Co-
operative Tribunal to exercise the functions conferred on the tribunal by or under the
Act. The Tribunal is to consist of a President and not more than three other members
possessing such qualifications as may be prescribed. Under sub-section (a) of Section
150, the Tribunal is authorised to act as a revisional authority under the circumstances
mentioned therein. Under sectionJ12), the Tribunal hearing an appeal under the Act has
to exercise all the powers conferred upon an appellate Court by Section 97 and Order
XLI in the first Schedule of the Code of Civil Procedure 1908. Section 151 empowers the
Tribunal to review its own decision. Section 152 provides for power of the Tribunal and
lays down that the Tribunal shall have the same power as are vested in a Court in
respect of proof of facts by affidavits, summoning and enforcing the attendance of any
person and examining him on oath; compelling the production of documents and
issuing commissions for the examination of witnesses - Section 166 bars the
jurisdiction of the civil Courts in respect of matters enumerated therein. Sub-section (3)
thereof provides that all orders, decisions or awards passed in accordance with the Act
or the rules shall, subject to the provisions for appeal or revision in this Act, be final,
and no such order, decision or award shall be liable to be challenged, set aside,
modified, revised or declared void in any Court upon the merits, or upon any other
ground whatsoever except for want of jurisdiction.
44. The aforesaid resume of the relevant provisions of the Act leaves no room for doubt
that the Registrar's nominees and the Cooperative Tribunal satisfy all the four tests for
deciding the question whether they are covered by the network of provisions of the
Contempt of Courts Act, 1971. Firstly, they are exercising judicial powers of the State,
as they decide the disputes or lis between the contesting parties in a judicial manner.
Secondly, they are creatures of the statute. Their establishment and their powers flow
from the statute. Thirdly, they have all the trappings of the civil court while they decide
these disputes originally or in appeal or revision as the case may be and lastly their
decisions are final and binding and cannot be called in question in any Court. It is,
therefore, apparent that the Registrar or his nominee or board of nominees while
exercising their powers are discharging their duties which are otherwise discharged by
ordinary civil courts. As seen above, under section 99, the Registrar or his nominee or
Board of nominees is given the same powers as- are given to ordinary civil courts of the
land by the Code of Civil Procedure. Section 97 specifically lays- down that the period
of limitation in the case of any dispute other than those mentioned in subsection (1)
which are required to be referred to the Registrar under Section 96, shall be regulated
by the provisions of the Limitation Act as if the dispute were a suit and the Registrar a
Civil Court. Therefore, it is obvious that the register while adjudicating opon a dispute
referred to him under Section 96, is for all intents and purposes, discharging the same
duties and functions as a court of law is expected to do and, therefore, the Registrar or
his nominee or Board of nominees would be a court. Admittedly, the dispute which is
decided is a civil dispute and, therefore, it would be a civil proceeding. Therefore, the
essential conditions to constitute a court namely that the court should have, apart from
having some trappings of a judicial tribunal, power to give a decision or definitive
judgment, which has finality and authoritativeness which are essential tests of judicial
pronouncement are fully satisfied by the Registrar's nominee or the Board of nominees
as well as by the appellate tribunal. The aforesaid view which we are taking on the
scheme of the Act runs parallel to the ratio of a Division Bench judgment of this Court
in the case of Dhrangadhra T.S.K.V. Sangh v. Rampratap Hakimchand and Co.
MANU/GJ/0117/1985 : AIR1985Guj78 . It is true that in that case, the Division Bench
consisting of N. H. Bhatt and M. B. Shah, JJ. was considering the question as to whether
proceedings before the Registrar's nominee can be said to be proceeding of civil nature
within the contemplation of section 14 of the Limitation Act. However, so far as the
Division Bench has held that proceedings before the Registrar's nominee under section
96 of the Act are judicial in nature, we entirely concur with the ratio of the decision in
this case. It is pertinent to note that in the aforesaid decision, two judgments of the
Supreme Court in MANU/SC/0349/1967 : 1967CriL J1380a (supra) and
MANU/SC/0187/1968 : 1969CriL J1064 (supra) were also considered. We wholly concur
with the reasoning of the Division Bench to the effect that the scheme of the Gujarat
Cooperative Societies Act would attract the applicability' of the ratio of the decision of
the Supreme Court in MANU/SC/0349/1967 : 1967CriL J1380a (supra) and not the
decision of the Supreme Court in MANU/SC/0187/1968 : 1969CriL J1064 (supra). We
may also refer, at this stage, to the Full Bench decision of the Bombay High Court in the
case of Bapusaheb Balasaheb Patil v. State of Maharashtra, MANU/MH/0144/1975 :
AIR1975Bom143 (supra). As already noted earlier, the Full Bench of the Bombay High
Court speaking through Tulzapurkar, J. (as he then was) held that officer on special
duty under section 3 of the Maharashtra Co-operative Societies Act, 1968 was a Court
within the meaning of Section 3 of the Contempt of Courts Act as he satisfied the main
two criteria in order to constitute the tribunal a Court. In the first place the tribunal or
an authority would be a court i it is given power to give a definitive judgment or a
decision which has finality and authoritativeness that would bind the parties appearing
before it so far as the rights litigated before it are concerned and secondly the
appointment of the tribunal or an authority must be statutory and the source of its
power must be judicial power of the State coming to it by the statute itself. On parity of
reasoning, it must be held that on the scheme of the Gujarat Co-operative Societies Act,
the Registrar's nominee as well as the Tribunal satisfy both the aforesaid tests for being
held to be judicial authorities and courts within the contemplation of the Contempt of
Courts Act, 1971.
45. Conclusion: - As a result of the aforesaid discussion, our answers to the referred
questions in these Misc. Civil Applications are in the affirmative, meaning thereby that
the Labour Courts under the Bombay Industrial Relations Act, 1946 and Industrial
Disputes Act, 1947 and the Industrial Courts under the Bombay Industrial Relations Act,
1946 and Industrial Disputes Act, 1947 are courts and courts subordinate to the High
Court in terms of Section 3 of the Contempt of Courts Act, 1971 or rather section 10
thereof and equally nominee of the Registrar acting under section 96 of the Gujarat Co-
operative Societies Act, 1961 and deciding disputes under section 101 and the Co-
operative Tribunal under that Act are courts and that too courts subordinate to the High
Court, as contemplated by section 10 of the Contempt of Courts Act, 1971. Both the
Misc. Civil Applications will now be placed before the Division Bench for proceeding
further in accordance with law in the light of the answers given by us in the present
references.
4 6 . Mr. Gupta for the respondents at this stage orally requested us for grant of
certificate of fitness for filing an appeal to the Supreme Court against this judgment. As
we have applied the ratio of the decided cases of the Supreme Court on the point and as
in our view, the questions referred for our consideration are squarely covered by the
relevant decisions of the Supreme Court discussed in details in our judgment', this is
not a fit case for grant of leave to appeal to the Supreme Court as requested by Mr.
Gupta. Oral application of Mr. Gupta is, therefore, rejected.
47. Order accordingly.
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