Summary
The appellant appointed the 1st respondent as a Welfare Officer as required by the Factories Act, 1948 and the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952. The letter of appointment stated that the 1st respondent was liable to be transferred from one unit of the appellant to another and that his services could be terminated by the appellant by one month's notice or with one month's pay in lieu ;thereof. On the 1st respondent being unprepared to go to a place to which he was transferred, tile appellant terminated his services with one month's salary. The 1st respondent appealed to the 2nd respondent, the State of Punjab, the appellate authority under r. 6(6) and the 2nd respondent ordered his reinstatement as the previous concurrence of the Labour Commissioner as required by r. 6(3), proviso 2, was not obtained. In appeal to the Supreme Court it was contended that : (i) the rule requiring the concurrence of the Labour Commissioner was invalid as it was outside the scope of the rule-making authority conferred on the State Government by s. 49(2) of the Act, and (ii) the order of reinstatement passed by the 2nd respondent was invalid as the appeal by the 1st respondent to the 2nd respondent was incompetent.
The 1st respondent also raised a preliminary objection that the appeal to the Supreme Court was incompetent because the 2nd respondent was not a tribunal within the meaning of Art.136(1) of the Constitution.HELD : (i) The 2nd respondent is a tribunal within the meaning of Art. 136(1) having regard to the distinctive features of the power concerted on it by r. 6(5) and (6).[387 B](Per Gajendragadkar, C. J., M. Hidayatullah, J. C. Shah and S. M. Sikri, JJ.) : In considering the question about the status of any body or authority as a tribunal under the article, the consideration about the presence of all or some of the trappings of a court is really not decisive. The presence of some of the trappings may assist the determination of the question as to whether the power exercised by the authority which possessed the said trappings, is the judicial power of the State or not. The main and basic test however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute -and can be described as a part of the State's inherent power exercised in discharging its judicial function. Applying the test, there can be no doubt that the power which the 2nd respondent exercised under rr. 6(5) and (6) of the Rules is a part of the State's judicial power. It has been conferred on the 2nd respondent by a statutory rule and it can be exercised in respect of disputes between the management and its welfare officers. There is a lis an affirmation by one party and denial by another, 367and the dispute necessarily involves the rights and obligations of the par-ties to it. The order which the 2nd respondent ultimately passes is described as its decision and it is made final and binding. Besides, it is an order passed on appeal. In reaching a fair and objective decision in the dispute brought before it in its appellate jurisdiction, the State Government has the power to devise its own procedure and to exercise such other incidental and subsidiary powers as may be necessary to deal effectively with the dispute. [386 F-H; 387 A-B, E]Per Bachawat, J. The basic test of a tribunal within the meaning of Art. 136, is that it is an adjudicating authority (other than a court) vested with the judicial power of the State. In India, the State has inherent judicial powers or functions and the courts and other authorities vested by the State with judicial functions are regarded as delegates of the State judicial power. The courts alone have no monopoly of the judicial power. An authority other than a court vested with the judicial power of the State in this sense is regarded as a tribunal under the article. The investiture of the trappings of a court is not an essential attribute of a tribunal. The plentitude of the residuary appellate power under Art. 136 embraces within its scope all adjudicating authorities vested with the judicial power of the State, whether or not such authorities have the trappings of a court. In order to be a tribunal, it is essential that the power of adjudication must be derived from a statute or a statutory rule. The appellate function and the power of conclusive determination of the civil rights of the parties with regard to the matters in controversy between them indicate that the 2nd respondent is under a duty to act judicially and to decide the dispute solely by ascertaining the facts on the materials before it and by the application of the relevant law on the point. As the rule does not prescribe any procedure for the hearing of the appeal the 2nd respondent may devise its own procedure consistently with its judicial duty. [392 D-F; 393 E, H; 394 A-C, D-E;396 C-E]Case law reviewed.(ii)(Per Gajendragadkar, C.J., M. Hidayatullah, J. C. Shah and S. M. Sikri, JJ.) : The words "conditions of service"used in s. 49(2) are wide enough to cover the proviso (2) to r. 6(3). Conditions of service would take in the termination of services and incidentally, the conditions subject to which such termination could be brought about. A statutory rule imposing the obligation on the management, prescribed by the 2nd proviso to r. 6(3) would fall within s. 49(2) of the Act and therefore, the rule is not invalid.[388 C-E, G](iii)(By Full Court) : The appeal preferred by the 1st respondent to 2nd respondent is incompetent. [389 H; 397 B-C]The scheme of the relevant rules is that if the management applies for the concurrence of the Labour Commissioner and the concurrence is not given by him, the management can appeal under r. 6(5). If the concurrence is given, or if a welfare officer's services are terminated without applying for concurrence, he may appeal under r. 6(6); but before such an appeal can be competent it must appear that the termination of service was in the nature of a punitive action. The termination in the instant case was no more than a discharge in terms of the conditions of service. It is not a punishment and so is outside r. 6(3) altogether.It is true that the form in which the order has been passed will not necessarily determine the character of the termination. The order of discharge in the instant case was a bonafide order of discharge, and the employer passed the order, because it was not its intention to cast any slur upon the employee, even though it thought it necessary to terminate his services, [388 H; 389 A-B, H; 390 C, F]368See the full content of this document
Extract
Associated Cement Companies Ltd. VS. P. N. Sharma And Another
PETITIONER: ASSOCIATED CEMENT COMPANIES LTD.Vs.RESPONDENT: P. N. SHARMA AND ANOTHERDATE OF JUDGMENT: 09/12/1964BENCH: GAJENDRAGADKAR, P.B. (CJ)BENCH: GAJENDRAGADKAR, P.B. (CJ)MUDHOLKAR, J.R.SHAH, J.C.SIKRI, S.M.BACHAWAT, R.S.CITATION: 1965 AIR 1595 1965 SCR (2) 366CITATOR INFO : R 1965 SC1767 (5)RF 1966 SC 282 (10)R 1968 SC 384 (4)RF 1977 SC2155 (24)R 1978 SC 597 (50,60)R 1979 SC1725 (47)D 1987 SC1629 (15,16)RF 1992 SC2219 (135)ACT: Constitution of India, 1950, Art. 136(1)-Tribunal-What is- Factories Act (63 of 1948), s. 49(1) and (2) and Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952, rr. 6(3), Proviso 2(5) and (6)-Scope of-R. 6(3) Proviso 2, if invalid.JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 44 of 1964.Appeal by special leave from the order dated July 4, 1962, of the Government of Punjab (Labour Department) in exercise of the powers conferred by sub-rule 6 of the Punjab Welfare Officers (Recruitment and Service Conditions) Rules, 1952.M.C. Setalvad, J. B. DadachanJi, 0. C. Mathur and Ravinder Narain, for the appellants.J. P. Goyal, for respondent No. 1.Gopal Singh and R. N. Sachthey, for respondent No. 2.The Judgment of GAJENDRAGADKAR C.J., M. HIDAYATULLAH, SHAH and SIKRI JJ. was delivered by GAJENDRAGADKAR C. J. BACHAWATJ. delivered a separate Opinion.Gajendragadkar, C. J. The principal point of law which arises in this appeal by special leave is whether respondent No. 2, the State of Punjab, exercising its appellate jurisdiction under Rule 6(6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952 (hereinafter called 'the Rules') is a Tribunal within the meaning of Art. 136(1) of the Constitution. The appellant, the Associated Cement Companies Ltd., Bhupendra Cement Works, Surajpur, challenges the validity of the appellate order passed by respondent No. 2 on July 4, 1962 under the provision of the said Rule, directing the ...
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