H.K. Bose, C.J.
1. This is an appeal from an order of Sinha, J., dated 20 August 1957 [vide 1958-II L.L J. 580] made in a writ petition quashing the decisions of an industrial tribunal and of the Appellate Tribunal.
2. Respondent 1, Burrakur Coal Company, Ltd., which is incorporated under the Indian Companies Act carries on inter alia the business of coal-mining. One of the collieries belonging to the company is known as Loyabad Colliery and the appellant was a workman employed at the said colliery as a piece-rated trammer.
3. In June 1953 proceedings in connexion with an Industrial dispute between the company and its workmen were pending before the Central Government Industrial Tribunal at Dhanbad, Sri L.P. Dave, On 16 September 1953, the appellant filed a complaint before the said tribunal under Section 33A of the Industrial Disputes Act alleging that the respondent-company had contravened Section 33 of the Act by refusing to allow him to work and had thus wrongfully dismissed him without the permission of the said tribunal. In this complaint the appellant alleged that he had been absent from his work from 14 June 1953 until 21 June 1953 by reason of having bean assaulted on 14 June 1953 and having consequently been in hospital until 20 June 1953. He further alleged that he had applied to the company's manager to be allowed to resume his duties on 22 June 1953, but he was not allowed to do so.
4. The company's case before the tribunal was that no application had been made to the manager on 22 June 1953 or at all and as the appellant was absent from his work without leave, MB employment had automatically terminated under the standing order governing such employment.
5. At the hearing before the tribunal evidence was adduced by both parties and the appellant in his evidence made a different case and alleged that he had been twice assaulted -once on 12 June 1953 and again on 14 June 1953 and in these assaults the company's men took part. The tribunal upon hearing the parties made an award directing that the appellant should be reinstated with backpay from 22 June 1953. This award was published in the Gazette of India dated 6 February 1954. In dealing with the merits of the case the tribunal arrived inter alia at the following findings:
(a) The appellant was assaulted on 12 June 1953 and also on 14 June 1953. But the tribunal was not satisfied that the assault on 12 June took place in the verandah of the manager's office nor that it was made by the company's men. The assault on 14 June was also not made with the connivance of the company's men and In the opinion of the tribunal these allegations were an afterthought and could not be believed.
In coming to this conclusion the tribunal relied on the letter of the Assistant Surgeon, Dhanbad, and the certificate enclosed therewith showing that the appellant was cent to the hospital from the Jogta, Police Station on 13 June 1953 for some injuries. These injuries were three bruises and wore simple. He was admitted to the hospital on 14 June 1953 and was discharged on 20 June 1953.
(b) The appellant must have seen the manager on 22 June 1953 and given him an application along with the medical certificate and asked for permission to resume duty.
In coming to this conclusion the tribunal relied on the oral evidence) of the manager and also on a copy of a letter written by the appellant to the conciliation officer, Dhanbad, on 00 June 1953 which copy together with an acknowledgement receipt given by the office of the conciliation officer, had been Bent by the trade union representing the appellant to the tribunal.
(c) Under the relevant standing order mere absence from duty without leave does not amount to automatic termination of employment. The absence from duty was not without satisfactory cause nor could it be said that it was an absence for more than ten days and so it did not amount to misconduct.
(d) The reason for refusing the appellant to resume his duties on 22 June 1953 appears to be the trade union activities of the appellant and was a cage of victimization.
In coming to this finding the tribunal relied on certain alleged discussions which took place between the manager and the tribunal, but of which no record appears in the evidence of the manager as recorded by the tribunal.
(e) The management never passed any order of dismissal against the appellant, but still they did not allow the appellant to work and did not pay him any wages and thus they had clearly committed a breach of Section 33 and, therefore, the application made by the appellant under Section 33A of the Industrial Disputes Act was maintainable.
6. As against the decision of the tribunal the company appealed to the Labour Appellate Tribunal of India and contended before the Appellate Tribunal that the appeal involved substantial question of law as to
(a) whether the application under Section 33A was maintainable;
(b) whether the tribunal had properly construed the standing order;
(c) whether the tribunal had not acted contrary to law and the fundamental principles of justice in drawing inferences from an alleged discussion which form no part of the record of proceedings before the tribunal;
(d) whether there was any evidence before the tribunal to justify the conclusion that the company's management had not acted bona fide or that it was a case of victimization;
(e) whether the alleged copy of the letter dated 30 June 1953 was not Inadmissible in evidence; and
(f) whether the tribunal had not erred in law in admitting in evidence the alleged copy of the alleged letter written to the conciliation officer and the alleged acknowledgement receipt without any proper proof thereof.
7. On 1 October 1953, the Labour Appellate Tribunal dismissed the company's appeal and held that no substantial question of law was involved in the appeal but it also went into the merits of the case and came to certain findings relying on the alleged discussion between the manager and the tribunal and it also construed the standing order in its own way.
8. Being aggrieved by this decision of the Labour Appellate Tribunal, the company, moved this Court under Article 226 of the Constitution on the ground that the decision contained errors of law apparent on the face of the record and should, therefore, be quashed by an appropriate writ and a rule nisi was issued on 22 February 1956. This rule finally, came up for hearing before Sinha, J., and the learned Judge made the rule absolute quashing the decisions of the Labour Appellate Tribunal and of the tribunal on 20 August 1957. It is against this order that the present appeal has been preferred.
9. In making the rule absolute, Sinha, J., made inter alia the following observations:
It is unthinkable that a Court should act upon evidence of the nature used in this case. That being so, it is easy to see that the tribunals in this case decided the matter on evidence which is no evidence at all. The highlight in the case is of course the reliance that has been placed on an alleged discussion with the manager. It is not stated where the discussion took place, whether it was in the presence of parties or either of them, whether it was done in Court or in private chambers of the tribunal. In fact, there is no mention of it any where in the record. No person adjudicating a dispute in a judicial manner can be permitted to decide a case upon such evidence which is no batter than gossip outside the Court, which so far as the tribunal was concerned, should never have taken place at all. With regard to the other documents they have also been marked as exhibits and relied upon without having been proved.... Then again to rely on copies furnished by the union as exhibits in the case without any supporting proof is wrong. It is but evident that the other side would have in such circumstances no opportunity whatsoever of challenging such evidence. As I have already stated, the alleged receipt from the conciliation officer is nothing more than a slip of paper with an illegible signature and without any official stamp and nobody has even come and deposed that such an acknowledgement was received from the conciliation officer or from his office.
10. The propriety of the order made by Sinha, J., on the basis of the reasonings given above has been challenged before us at the hearing of this appeal.
11. The principal point raised is that the learned Judge failed to appreciate the manner in which the proceedings are conducted before industrial tribunals and/or Labour Appellate Tribunals as constituted by the Industrial Disputes Act and the Industrial Disputes (Appellate Tribunal) Act and as he failed to notice the difference between a Court and a tribunal, he has taken the mistaken view that the Indian Evidence Act extended to industrial tribunals or Labour Appellate Tribunals and that such tribunals are controlled by the rules of evidence as any other Court of law.
12. Now it appears that the learned trial Judge has, in coming to his final conclusion, relied on the case decided by the Supreme Court in Bharat Bank, Ltd. v. Employees of Bharat Bank, Ltd. 1950 L.L.J. 921. In this case an industrial tribunal was constituted under Section 7 of the Industrial Disputes Act, 1947, and certain disputes relating to the retrenchment and victimization between Bharat Bank, Ltd., and its employees were referred to such tribunal for adjudication. The tribunal after enquiry made an award directing inter alia reinstatement of some employees. Against this award an appeal was preferred to the Supreme Court under Article 136 of the Constitution. Before the Supreme Court a preliminary objection was taken that the appeal was not competent inasmuch as Article 136 of the Constitution does not include an appeal against an award of an industrial tribunal, as the award is not a judicial determination. The majority view as expressed by the Supreme Court was that the appeal was competent as the tribunal in making the award was exercising judicial functions. Kania, C.J., expressed the view that the functions and duties of the industrial tribunal were very much like those of a body discharging judicial functions, although It was not a Court. The rules framed by the tribunal require evidence to be taken and witnesses to be examined, cross-examined and re-examined and having considered all the provisions of the Industrial Disputes Act, it seemed to him clear that the tribunal was discharging functions very near to those of a Court, although it was not a Court in the technical sense of the word.
13. Mahajan, J., after referring to Sections 2(k), 7 and 11(3) of the Act and rules 3, 13, 14, 19, 21 and 30 of the Industrial Disputes (Central) Rules made under Section 39 of the Act, observed in 1950 L L J. 921 at 932, as follows:.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 denned above at p. 932. It has certainly a considerable element of the fourth also Inasmuch as the tribunal cannot take any administrative action, the character of which is determined by its own choice. It has to make the adjudication in accordance with the provisions of the Act as laid down in Section 7. It consists of persons who are qualified to be or have been Judges. It is its duty to adjudicate on a serious dispute between employers and employees as affecting their right of freedom of contract and It can impose liabilities of a pecuniary nature and disobedience of Its award is made punishable.... The adjudication of the dispute has to be in accordance with evidence legally adduced and the parties have a right to be heard and being represented by a legal practitioner. Right to examine and cross-examine witnesses has been given to the parties and finally they can address the tribunal when evidence is closed. The whole procedure adopted by the Act and the rules is modelled on the Code of Civil Procedure. 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.... 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 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 bat that circumstance cannot affect the question of their being within the ambit of Article 136.
14. Then in. 1950 L.L.J. 921 at 941-942 In dealing with the contention that the award of the tribunal was based on no evidence whatsoever, Mahajan, J., analysed the evidence given In the case and observed:. Whether the charge of victimisation in individual cases was proved or not depended on proof of certain facts which had to be established by evidence. The onus of proving victimization clearly rested on the employees. No evidence whatsoever was led on their behalf. The statement of the case by Sri Parwana was not on cath. There was no examination or cross examination of Sri Parwana. No affidavit supporting the facts stated by Sri Parwana was filed by him or by any employee. Sri Parwana produced an abstract of the correspondence but the original correspondence was not produced.... It seems to me, therefore, that the procedure adopted by the tribunal was against all principles of natural justice and the award is thereby vitiated and should be set aside.... The members of the tribunal seem to have thought that having heard the statement of the cases of the parties, they could proceed to a judgment on their own view of its right or wrong unaided by any material. That kind of procedure, to my mind, is unwarranted by statute and is foreign to a democratic Constitution.
15. Mukherjea, J., who delivered the minority or dissentient judgment after referring to the provisions of Section 11 of the Act and particularly to Section 11(3) observed at p. 947:. This means that proceedings before an industrial tribunal or for the matter of that before the other two bodies also, could be deemed to be judicial proceedings only for certain specified purposes. The express provision making the proceedings judicial proceedings for those purposes only emphasizes that they are not judicial proceedings otherwise.
16. This decision of the Supreme Court in Bharat Dank case 1950 L.L.J- 921 (vide supra) has been considered in a recent decision of the Supreme Court in Associated Cement Companies, Ltd. v. P.N. Sharma 1965-I L.L.J. 433. In this case the question that arose for consideration was whether the State of Punjab exercising its appellate jurisdiction under Rule 6(6) of the Punjab Welfare Officers (Recruitment and Conditions of Service) Rules, 1952, is a tribunal within the meaning of Article 136 of the Constitution. Gajendragadkar, C.J., in 1965-I L.L.J. 433 at 439 observed:.It is really not possible or even expedient to attempt to describe exhaustively the features which are common to the tribunals and the Courts, and features which are distinct and separate. The basic and the fundamental feature which is common to both the Courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State.
17. In 1965-I L.L.J. 433 at 442 reference is made to the cases of Bharat Bank, Ltd. 1950 L.L.J. 921 (vide supra) and of Durga Shankar Mehta v. Thakur Raghurai Singh : [1955]1SCR267 which adopted the majority decision in Bharat Dank case 1950 L.L.J. 921 (vide supra).
18. Then after dealing with certain Australian decisions the learned Chief Justice pointed out the difference between the powers given under the Australian Constitution and the powers given under the Indian Constitution in the following words in 1965-I L.L.J. 433 at 444:. Under our Constitution, there is no rigid separation of powers as under the Australian Constitution; and so, it would not be constitutionally inappropriate or improper to say that judicial power of the State can be conferred on the hierarchy of Courts established under the Constitution as well as on tribunals which are not Courts strictly so-called.
19. Then in 1965-I L.L.J. 433 at 447 the following further observations occur:. The presence of some of the trappings may assist the determination of the question as to whether the power exercised by the authority which possesses the said trappings is the judicial power of the State or not. The main and the 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 this teat there can he no doubt that the power which the State Government exercises under Rules 6(5) and 6(6) is a part of the State's judicial power...
20. The Supreme Court thus finally came to the conclusion that the State Government exercising appellate jurisdiction under Rule 6(6) was a tribunal within the meaning of Article 136 of the Constitution.
21. These two decisions of the Supreme Court in Bharat Bank case 1950 L.L.J. 921 (vide supra) and Associated Cement Companies case 1965-I L.L.J. 433 (vide supra) thus make it abundantly clear that an industrial tribunal though not falling within the hierarchy of ordinary Courts is vested with judicial power of the State and it discharges judicial functions.
22. Now, if a tribunal has to exercise judicial power or to discharge judicial functions, it follows logically that it has to observe the fundamental principles of judicial procedure and to observe the principles of natural Justice. As pointed out by Mahajan, J., in Bharat Bank case 1950 L.L.J. 921 (vide supra) an industrial tribunal set up under Section 7 of the Industrial Disputes Act is required by the statute to take evidence legally adduced. The expression 'legally adduced' emphasizes the fact that the evidence given before the tribunal shall be according to law, that is, according to the rules of evidence as laid down by the Evidence Act. The preamble of the Evidence Act indicates that the Act applies to all judicial proceedings in or before any Court and Section 3 of the Act defines ' Court' as including all Judges and Magistrates and all persons except arbitrators legally authorized to take evidence. So, there can be hardly any room for doubt that an industrial tribunal is a 'Court' in the wider connotation of the terms as defined in 8. 3 of the Evidence Act and the Act applies to judicial proceedings before an Industrial tribunal. It Is, therefore, clear that the decisions of the tribunal and of the Labour Appellate Tribunal, which are based on misconception of the true functions and duties of such tribunals and which proceed on the assumption that the proceedings before such tribunal are not governed by the rules of evidence as contained in the Evidence Act, are vitiated by errors of law apparent on the face of the record and cannot, therefore, be sustained.
23. Reliance has been placed on behalf of the appellant on a decision of the Madras High Court in Electro Mechanical Industries, Ltd., Madras v. Industrial Tribunal No. 2 for Engineering Firms and Type, Foundries 1950 L.L.J. 1133 in support of the proposition that an industrial tribunal exercises quasi-judicial functions and, therefore, it is not hampered by the rules of evidence applicable to proceedings in a Court of law. In this case certain disputes as to whether the employees were entitled to demand return of wages which had been deducted under the provisions of the Payment of Wages Act wore referred to an industrial tribunal for adjudication. The tribunal made its award allowing certain clearness allowance calculated at a particular rate. The complaint of the management in challenging the award in a writ petition was that there was no evidence adduced before the tribunal by either side to warrant the conclusion arrived at by the tribunal. It appeared that the tribunal arrived at the finding on the point after taking into consideration certain facts which apparently were within its personal knowledge having been culled from other awards and similar data. The Division Bench of the Madras High Court held that though a Court of law is not generally entitled to arrive at a finding in any matter except on the evidence adduced before it, quasi-judicial tribunals like the industrial tribunal not hampered by the rules of evidence applicable to proceedings in a Court of law would be entitled to rely on data available to it otherwise than from evidence adduced on behalf of the parties.
24. It appears to us that in view of the decision of the Supreme Court in Bharat Bank case 1950 L.L. J. 921 (vide supra) the proposition enunciated in the Madras decision cannot be regarded as good law.
25. Reference was also made to a Single Bench decision of this Court in Leonard Biermans Workers' Union v. Second Industrial Tribunal, West Bengal 1962-I L.L.J. 68, In this case, Banerjee, J., has held that a proceeding before an industrial tribunal, although deemed to be a judicial proceeding for certain purposes, is not strictly a judicial proceeding in the sense that it calls for a decision on a question of legal right in dispute between the parties involving either a finding of fact or an application of a fixed rule or principle of law or involving both. It has further been held that since the proceeding before an industrial tribunal is not wholly a judicial proceeding but merely a quasi-judicial proceeding, Section 1 of the Indian Evidence Act does not make the Act applicable of its own force to such a proceeding and an industrial tribunal, therefore, is entitled to proceed on the basis of oral or documentary evidence which may not be strictly admissible in evidence under the Indian Evidence Act.
26. It appears that attention of Banerjee. J., was not drawn either to the decision of Sinha, J., in 1958-II L.L J. 580 which is under appeal before us or to the decision of the Supremo Court in Bharat Bank case 1950 L.L.J. 921 (vide supra). Banerjee, J., in arriving at his decision placed strong reliance on the provisions of Sections 11(3) and 11(8) of the Industrial Disputes Act and Sections 1 and 3 of the Indian Evidence Act. Mahajan, J., in Bharat Bank case 1950 L.L.J. 921 (vide supra) also analysed the relevant provisions of the Industrial Disputes Act including Section 11 and also the relevant rules framed under the Industrial Disputes Act and upon a consideration of these provisions name to the conclusion that the proceedings before an industrial tribunal were judicial proceedings and it was authorized to take evidence legally adduced before it, Banerjee, J., appears to have taken the same view which has been expressed by Mukherjee, J., in his dissentient judgment in Bharat Bank case 1950 L.L.J. 921 (vide supra). I have no doubt that if the attention of the learned Judge had been drawn to the majority decision in Bharat Bank case 1950 L.L.J. 921 (vide supra) the ultimate decision of the learned Judge would have been the other way.
27. Our attention was also drawn to another decision of the Supreme Court in Union of India v. T.R. Varma 1958-II L.L.J. 259. In this case, it has been held that the Evidence Act has no application to enquiries conducted by departmental tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that which obtains in a Court of law. If the rules of natural justice are observed, then the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.
28. It is to be observed that in this case the Supreme Court was not dealing with proceedings before an industrial tribunal constituted under the provisions of the Industrial Disputes Act, but it was considering the case of proceedings before a departmental tribunal. The Joint Chief Controller of Imports and Exports was entrusted with the enquiry into charges of misconduct against the Assistant Controller in the Commerce Department of the Union Government. In dealing with such a proceeding, the Supreme Court observed that the strict rules of evidence as contained in the Evidence Act were not applicable to such proceedings.
29. But so far as the functions of an industrial tribunal are concerned, we have the direct authority of Bharat Bank case 1950 L.L.J. 921 (vide supra) wherein It has been held that an industrial tribunal has to take evidence legally adduced. We have seen that, in the Instant case, the letter written by the hospital authorities and the annexure thereto have been admitted in evidence and have been taken into consideration by the tribunals without giving any opportunity to the company to examine or cross-examine the persons writing such letter or giving the certificate. A copy of the letter written by the appellant to the conciliation officer which was forwarded by the trade union was admitted in evidence without any proof that it was the true copy of the letter which was actually written by the appellant to the conciliation officer or chat the acknowledgement was a genuine acknowledgement. The learned trial Judge has levelled his criticism against these documents and I have extracted his observations in earlier part of the judgment and in my view the learned Judge is absolutely justified in making the criticism that he did with regard to these documents. Then again the finding of victimization on certain alleged discussions which took place between the tribunal and the manager cannot be supported under any circumstances.
30. It was argued on behalf of the appellant that at the time whom these documents were admitted in evidence and made exhibits, no objection was taken on behalf of the company as to their admissibility and so the company cannot make a grievance of the fact that these documents have been admitted in evidence without being proved according to law. Bat there is no material before us to show as to whether the company got proper or any opportunity to object to the mode of proof or to the admissibility of such documents. The learned Counsel for the company has stated before us that the tribunal had received the documents in question from the hospital authorities and the trade union and made them exhibits in the proceeding and no opportunity was given to the company to raise any objection on the ground of want of proof or as to their admissibility in evidence. It is quite clear from the finding of the Labour Appellate Tribunal that its conception about a proceeding in industrial tribunal is that such tribunals are not bound to follow the rules of evidence as laid down in the Evidence Act. In these circumstances, we do not think it right to hold that there has been any waiver of objection to the mode of proof or admissibility of the documents in question so as to preclude the company from making a grievance of the fact that the rules of evidence were not adhered to by the tribunal in conducting the proceeding in question. Moreover, In our view, the rules of natural justice also require that before such documents are admitted in evidence and are taken into consideration by the tribunal, opportunity should be given to the party adversely affected by them to rebut such evidence or to contradict the statements contained in such documents which are prejudicial to such party. But this was not done.
31. A further contention was raised on behalf of the respondents that the tribunal was wrong in coming to the conclusion that more refusal of work to the appellant when he approached the company for resumption of his duties amounted to contravention of the provisions of Section 33, This contention of the respondents is correct and is supported by the unreported decision of this Division Bench, in Keshoram Industries and Cotton Mills, Ltd. v. Second Industrial Tribunal Appeal from Original Order No 53 of 1964, dated 19 November 1964.
32. This Division Bench in that case observed : 'Admittedly there has been no specific order of dismissal or discharge passed by the appellant. No order of suspension was also passed against respondents at any stage involving loss of his pay and if he was simply denied work and was prevented from entering the mills to attend to his duties, that had not the effect of depriving respondent. 3 of his wages, if he was otherwise found entitled to such wages. There is nothing on record to show that the appellant-company at any stage refused to pay respondent 3 his wages for the disputed period. The Patna High Court has held that mere non-payment of wages is no alteration of the conditions of service nor does it amount to punishment within the meaning of Section 33 of the Act.'
33. As I have pointed out already, the finding of the tribunals of depriving the appellant of his job on the ground of victimization has no legs to stand upon. There is no legal evidence to support it. The alleged discussion is no legal evidence at all. There is thus no contravention of Section 33 of the Industrial Disputes Act and the application under Section 33A is, therefore, not maintainable.
34. For all these reasons, this appeal must fail and it is accordingly dismissed. There will be no order as to coats In this appeal.
B.C. Mitra, J.
35. I agree.