Patna High Court
R.S. Murthy vs R.K. Naug And Anr. on 19 January, 1976
Equivalent citations: (1976)IILLJ53PAT
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. This writ application has been filed on behalf of the petitioner for quashing an order, dated the 30th March, 1972, passed by the Central Government Industrial Tribunal (No. 2), Dhanbad (hereinafter referred to as the "Tribunal", rejecting an application filed on behalf of the petitioner under Section 476 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code), for lodging a complaint under Section 193 of the Indian Penal Code against respondents.
2. It appears that the Central Government, by its order, dated the 19th July, 1967, had referred to the Tribunal a dispute existing between the employers in relation to the National Coal Development Corporation Limited, Ranchi and their Workmen which was numbered as Reference No. 244 of 1967. During the pendency of the said reference, several complaints under Section 33A of the Industrial Disputes Act (hereinafter referred to as the "Act") were filed, alleging contravention of certain provisions of the Act. The workmen were represented by the National Coal Organisation Employees Association, respondents 1 and 2 are assistant general secretary and general secretary, respectively, of the said Association. During the course of the hearing of the complaints, several witnesses were examined and documents were proved. Respondents 1 and 2 produced and proved two documents, Exts. W7 and W21. On behalf of the petitioner, an objection was taken that those documents were forged and fabricated for the purpose of being used in the proceedings. An application was filed before the Tribunal that, as The respondents had used forged documents and given false evidence during the course of the hearing of the proceedings, they had committed an offence punishable under Section 193 of the Indian Penal Code, and as such, a complaint in writing should be made by the Tribunal in accordance with the provisions of Section 195(1)(b) of the Code. The Tribunal heard the parties on the question of filing of the complaint and, by the impugned order, it rejected the said application, holding that the Tribunal 5s not a "Court" within the meaning of Section 195(1)(b), and as such, there was no question of filing a complaint in accordance with the provisions of that section.
3. The petitioner initially filed a criminal revision before this Court, which was numbered as Criminal, Revision No. 1179 of 1972, which was admitted by this Court and later converted into this application under Arts. 226 and 227 of the Constitution of India.
4. Learned Counsel for the petitioner has submitted that a proceeding before the Tribunal constituted under the Act is a judicial proceeding and it adjudicates on civil rights of the parties, and, as such, it will be deemed to be a "Court" within the meaning of Section 195(1)(b) of the Code. Section 195(1)(b) prescribes a bar on the power of the Criminal Court of taking cognizance of an offence punishable under the section mentioned in the said sub-section, including an offence under Section 193 of the Indian Penal Code, when such offence is alleged to have been committed in or in relation to any proceeding in any Court, unless a complaint in writing is filed by such Court or some other Court to which such Court is subordinate.
5. Sub-Section (2) of Section 19 reads as follows:
(2) In Clauses (b) and (c) of Sub-section (1) the term 'Court' includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877.
This sub-section speaks in specific terms about Civil, Revenue or Criminal Court and excludes directly only the Registrar or a Sub-Registrar. There is no mention about any Tribunal constituted under the Act, or authorities performing judicial functions under different enactments which conform to the requirements of a Court. On several occasions question aroses in relation to many such authorities as to whether, while performing judicial functions, they are "Court" within the meaning of Section 195(1)(b) of the Code. In this connection it has to be borne in mind that there are many bodies which have to decide questions in issue and in so doing they have to act judicially; but, nonetheless, they cannot be termed as "Courts" reference may be made to the following passage from the Halsbury's Laws of England Hailsham Edition, Volume 8, page 526:
Many bodies are not Courts, although they have to decide questions and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees, the Court references constituted under the Unemployment Insurance Act to decide claims made on the insurance funds, the benchers of the Inns of Court when considering the conduct of one of their members, the General Medical Counsel, when considering question affecting the position of a medical man.
6. In Sitamarhi Central Co-operative Bank Ltd. v. Thakur Jugal Kishore Sinha A.I.R. 1965, Patna 227, this Court had to consider as to whether the Registrar of the Co-operative Societies, while exercising powers under S 48 of the Bihar and Orissa Co-operative Societies Act, is a "Court" and a Bench of this Court, for the purpose of determining the said question laid down three tests to be applied to find out as to whether an authority exercising judicial or quasi-judicial power is a "Court." In that connection it was pointed out that, before such an authority is said to be a "Court."
(i) the dispute which is to be decided by him must be in the nature of a civil suit,
(ii) the procedure for determination of such dispute must be a judicial procedure; and
(iii) the decision must be of a binding nature.
As the Registrar under the Co-operative Societies Act conforms to all the aforesaid three requirements, it was held that he would be deemed to be a Court. The said judgment was affirmed by the Supreme Court in Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-operative Bank Ltd. . This aspect of the matter has also been considered by the Supreme Court in Braj Nanda Sinha v. Jyoti Narayan , and it was emphasised that one of the important tests in this connection is as to whether the pronouncement of the body is binding in nature. In the well-known case of Cooper v. Wilson [1937] K.B. 309, also this aspect of the matter has been considered and it was observed as follows:
A true judicial decision presupposes as 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 dispose 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.
7. Learned Counsel appearing for the petitioner has submitted that Sub-section (3) of Section 11 of the Act makes the proceedings before such a Tribunal a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, which leads to an irresistible conclusion that such a Tribunal will be deemed to be a "Court".
Sub-section (3) of Section 11 reads as follows:
(3) Every Board, Court, Labour Court, Tribunal and National Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil procedure 1908 when trying a suit, in respect of the following matters, namely:
(a) enforcing the attendance , of any person and examining him on oath;
(b) compelling the production of documents and material objects;
(c) issuing commission for the examination of witnesses;
(d) in respect of such other matters as may be prescribed; and 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 Indian Penal Code.
In view of this sub-section, there cannot be any dispute that a proceeding before such a Tribunal is a judicial proceeding. From a bare reference to Sections 7, 7A, 10(1)(c), 10(1) (d), 10 ,(1A) read with second and third schedules of the Act, it is also obvious that the Labour Courts and Tribunals constituted under the Act have to adjudicate upon disputes of civil nature.
8. Now, the question that remain to be answered is to whether, the findings of such a Tribunal are binding in nature, Section 17 of the Act, which is relevant for the purpose, is in these words:
17(1) Every 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 as the appropriate Government thinks fit.
(2) 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.
Sub-section (2) of Section 17 makes the award of such a Tribunal, after publication, final which cannot be questioned had in any Court in any manner whatsoever, if this section stopped at that, there would have been no hesitation in holding that a Tribunal under the Act is a "Court". But, Sub-section (2) of Section 17 itself says that such awards shall be final subject to the provisions of Section 17A, Section 17A contains provisions regarding commencement of the award. Relevant portion of Section 17A reads as follows:
17A(1) An award (including an 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 dispute to 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 in expedient 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.
Reading Section 17(2), along with Section 17A(1) of the Act, it is apparent that the enforceability of an award given by such Tribunals is subject to the exercise of the powers by the appropriate Government or the Central Government, as the case may be, in accordance with the provisions of the Sub-section (1) of Section 17A; that is when the appropriate Government is a party to such dispute, under certain contingencies mentioned therein, it may be declared that the said award "shall not become enforceable. Similarly, in case of awards given by National Tribunals the Central Government in those very contingencies can make such a declaration. In my opinion, in view of the above provision, it is difficult to hold that the award by the Tribunals under the Act are final and binding in nature. The matter would have been quite different if these verdicts were subject to some appeal, which is on integral provision of judicial proceedings. 'The appropriate Government or the Central Government, while exercising the power under the proviso to Sub-section (1), of Section 17A is not exercising any appellate power nor a judicial one; it is merely administrative exercise of power taking into account the expediency and exigencies of the situation. In this connection it can be urged that such powers can be exercised by the appropriate Government in connection with awards given by a Labour Court or a Tribunal in which such appropriate Government is a party, and by the Central Government in case the award has been given by the National Tribunal; so far as other awards are concerned, the proviso to Sub-section (1) of Section 17A is not applicable and they will be deemed to be final in view of the provisions of Sub-section (2) of Section 17. But, on closer examination, it is difficult to hold that the same authority or Tribunal will be deemed to be a Court within the meaning of Section 195(1)(b) of the Code for the purposes of disputes in which the appropriate Government is not a party and will be deemed to be not & Court in dispute where such appropriate Government is a party.
9. In this connection Sub-section (8) of Section 11 of the Act, which reads as under, is also relevant:
(8) Every Labour Court, Tribunal or National Tribunal shall be deemed to be a civil Court for the purposes of Sections 480, 482 and 484 of the Code of Criminal Procedure, 1898 .
This section, while laying down that such Labour Court or Tribunal shall be deemed to be a civil Court for the purposes of Sections 480, 482 and 484 of the Code, does not speak about the provisions of Section 195(1)(b) of the Code. There are many enactments under which there are specific provisions saying that such Tribunals or authorities shall be a Court within the meaning of Section 195(1) of the Code. Perhaps, that is the reason that the Code of Criminal Procedure, 1973 (although that is not applicable in the present case) in Sub-section (3) of Section 195(1) has added a Tribunal also along with Civil, Revenue or Criminal Court, which will be deemed to be a "Court" within the meaning of Clause (b) of Section 195(1) of that section. Sub-section (3) of Section 195 of the New Code read as follows:
(3) in Clause (b) of Sub-section (1), the term 'Court' means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central Provincial or State Act, if declared by that Act to be a Court for the purposes of this section.
While including a "Tribunal" within the meaning of the term "Court" it has specifically provided that such Tribunals will be deemed to be "Court" only if they have been declared by that Act in question to be a Court for the purposes of the said section. However, I am not attaching any importance to this aspect because the instant case will be governed by the Old Code.
10. In the well-known case of the Bharat Bank Ltd., Delhi v. (The Employees of the Bharat Bank Ltd., Delhi , the Supreme Court had to consider the questions as to whether a Tribunal or a Labour Court constituted under the Act is a "Court" in connection with Article 136 of the Constitution. In that context, Kania, C.J., in paragraph 2 of the report, observed as follows:
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.
Mahajan, J. (as he then was), while examining the scope of inquiry and adjudication by such an industrial Court, in the same judgment in paragraph 27, observed thus:
In, my opinion, therefore, the Industrial Tribunal has all the necessary attributes of a Court of justice. It has no other function except that of adjudicating on a dispute, it is no doubt true that by reason of the nature of the dispute that they have to (adjudicate the law gives them wider power than are possessed by ordinary Courts of law, but powers of such a nature do not affect the question that they are exercising judicial power. Statutes like the Relief of Indebt-ness Act, or the Encumbered Estates have conferred powers on Courts which are not ordinarily known to law and which, affect contractual rights. That circumstances does not make them anything else but Tribunals exercising judicial power of the State though in a degree different from the ordinary Courts 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 Article 136.
11. A Bench of the Assam High Court in Sudhivdra Kumar Den v. Gopika Ranjan Datta A.I.R. 1960, Assam 55, also held that an Industrial Tribunal is not a Court within the meaning of Section 195(1)(b) of the Code. In, this connection another relevant thing to be noticed that these Industrial Tribunals have not only to decide the matter in dispute they can even travel beyond the Us and can, under special circumstances, add to, or alter, the terms of contract between the parties for the purpose of maintaining industrial peace. This aspect of the matter was considered by the Federal Court in Western India Automobile Association v. Industrial 'Tribunal, Bombay A.I.R. 1949 Federal Court 111, where it was observed that such Tribunals can do what no Court can, namely, add to, or alter, the terms or conditions of the contract of service. In my opinion, as was observed by the Supreme Court in the case of the Bharat Bank Ltd., Delhi (supra), these Industrial Tribunals have to discharge functions which are very near to those of a Court, but nonetheless they can not he deemed to be a "Court" within the meaning of Section 195(1)(b) of the Code.
12. Learned Counsel appearing on behalf of the petitioner has laid much stress on the judgment of the Supreme Court in Lalji Haridas v. The State of Maharashtra , where an Income-tax Officer, in view of Section 37 of the Income-tax Act, 1922, was held to be a Court within the meaning of Section 195(1)(b) of the Code. In that case, the test regarding the final and binding nature of the verdict of an Income-tax Officer was not discussed, obviously because the findings of the Income-tax Officers under the said Act are final, subject to any appeal. Whether the proceeding was judicial in nature was primarily examined and answered. In that very volume at page 1140 there is another judgment of the Supreme Court in Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, which held that a Customs Officer under the Sea Customs Act is not a Court or a Tribunal, although in adjudicating upon matters under Section 167 of the Sea Customs Act he has to act in a judicial manner.
13. Learned Counsel for the petitioner has also made a reference to a Bench decision of this Court in Chandra Kishore Jha v. The State of Bihar (1975) Bihar Bar Council Journal 656, where a Compensation Officer appointed under the Bihar Land Reforms Act, 1950 was held to be a "Court" for the purpose of Section 195(1)(b) of the Code. In the said judgment, on examination of the relevant provisions, it was found that the said Compensation Officer was discharging a judicial function affecting civil rights and the finding recorded by him was final and binding in nature and could not be challenged in Civil Court. This case, in my opinion, does not help the petitioner, because, as I have already pointed out, the finality and enforceability of the award under certain contingencies is subject to exercise of the powers by the appropriate Government under the proviso to Section 17A(1) of the Act. Apart from that, as these Industrial Tribunals have the power even to travel the lis and issue directions altering the terms and conditions of the contract of service, in order to maintain peace in the industry. It is difficult to hold that they will be deemed to be "Court" within the meaning of Section 195(1)(b) of the Code of Criminal Procedure, 1898.
14. In the result, the application fails, and is dismissed. In the circumstances, however, there will be no order as to costs.
Shambhu Prasad Singh, J.
15. I agree.