09 December 1964
Supreme Court


Case number: Appeal (civil) 44 of 1964






DATE OF JUDGMENT: 09/12/1964


CITATION:  1965 AIR 1595            1965 SCR  (2) 366  CITATOR 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.

HEADNOTE: 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,  367 and   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] 368

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. BACHAWAT J. 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  appellant  to reinstate  its Welfare Officer, P. N. Sharma-respondent  No. 1.  At the hearing of this appeal, a  preliminary  objection



has  been raised by Mr. Goyal on behalf of respondent No.  1 that  special  leave  should not have been  granted  to  the appellant,  because  the appeal is incompetent  inasmuch  as respondent  No.  2  against  whose  appellate  decision  the appellant  purports to have preferred the present appeal  is not  a  tribunal  under Art.  136(1).   If  the  preliminary objection fails, then it would become necessary to  consider the appellant’s contention that the impugned appellate order is invalid and erroneous and must be set aside. The  appellant is a company with its Head Office  in  Bombay and it runs 14 cement factories, 2 collieries and one  fire- brick  works  in 8 States of the Union of India.   One  such Cement Works is the Bhupendra Cement Works, Surajpur  within the  territorial  limits  of respondent  No.  2.  Under  the provisions  of  the  Factories Act, 1948 (No.  63  of  1948) (hereinafter called the Act) read with the provisions of the Rules,  the  appellant was required to appoint  one  Welfare Officer and to notify his appointment and 369 qualification   to   the  Chief  Inspector   of   Factories. Respondent No. 1 was appointed such a Welfare Officer.   The letter of appointment issued to him on March 2, 1956, stated that  he would be 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.  Respondent No. 1 was first posted at Lakheri Cement Works, Lakheri in Rajasthan,  where he  joined  duty  on March 14,  1956.   Thereafter,  he  was transferred  from  one  place to another  according  to  the requirements  of service and the working of the  appellant’s factories.  On June 26, 1960, he was posted at the Bhupendra Cement Works.  He was working at these Works until September 26,  1961,  when his services were terminated.   It  appears that  the  appellant  transferred  respondent  No.  1   from Bhupendra  Cement Works to Kymore Works which is near  Katni in Madhya Pradesh, but apparently, respondent No. 1 was  not prepared  to  go  to  Kymore  Works,  and  after  long   and protracted correspondence between the parties, the appellant wrote  to him on September 26, 1961, that since he  had  not proceeded  to Kymore on transfer as directed, he had  ceased to  be in the employment of the appellant, and his name  had been struck off from the Company’s roll. Respondent No. 1 then filed an appeal before respondent  No. 2 as the appellate authority under R. 6(6) of the Rules.  On receiving notice of the said appeal, the appellant filed its written statement and disputed the validity of the grievance made  by respondent No. 1 in respect of the  termination  of his  services.   Respondent No. 2 then passed  the  impugned order on July 4, 1962.  This order was issued in the name of the  Governor of Punjab in exercise of the powers  conferred by  R. 6(6) of the Rules, and it directed that the  Governor of  Punjab  was  pleased to reinstate respondent  No.  1  as Labour  Welfare  Officer in the service  of  the  appellant. "However",  says the order, "nothing in this order shall  be construed  to  prevent  the management  from  taking  action against  Mr. P. N. Sharma in accordance with the  provisions of  the Rules for such acts and commissions on his  part  as may have come to their notice".  It is the validity of  this order which is challenged before us by the appellant. Before proceeding to deal with the preliminary objection, we may conveniently refer to the relevant provisions of the Act and  the  Rules.  The Act has been passed in 1948  with  the object  of  consolidating and amending  the  law  regulating labour  in  factories.  Consistently with  this  object  and policy,  the Act has made several beneficient provisions  in



the interests of industrial labour employed 370 in  factories  to which the Act applies.  Section  49  deals with the appointment of Welfare Officers.  S.49(1)  provides that in every ,factory wherein five hundred or more  workers are  ordinarily employed, the occupier shall employ  in  the factory   such  number  of  welfare  officers  as   may   be prescribed.   It is common ground that the  appellant  falls within the, scope of s.49(1), and so, it has been appointing welfare officers in its factories; in fact, respondent No. 1 was one of such Welfare Officers appointed by the appellant. Section  49(2)  provides  that  the  State  Government   may prescribe  the  duties,  qualifications  and  conditions  of service  of officers employed under sub-section (1).  It  is by  virtue of the powers conferred on the  State  Government that respondent No. 2 has framed the Rules. The  Rules were framed by respondent No. 2 in 1952 and  have ,been  published in the Punjab Government Gazette  on  March 26, 1952, and they came into force from September 30,  1952. Rule 4 prescribes the qualifications for the appointment  of a  Welfare -Officer.  R. 5 provides for the procedure  which has  to  be followed ,in appointing Welfare  Officers.   R.6 prescribes conditions of service of Welfare Officers and R.7 prescribes  their  duties.  R.8 confers power on  the  State Government to exempt any factory or class or description  of factories from the operation of all or -any of these  Rules, subject  to compliance with such alternative arrangement  as may  be approved.  In the present appeal, we are  ,concerned with R.6. Rule 6 reads thus               "(1)   A  Welfare  Officer  shall   be   given               appropriate status corresponding to the status               of the other executive heads of the factory.               (2)   The  conditions of service of a  Welfare               Officer shall be the same as of other  members               of  the Staff of corresponding status  in  the               factory.               (3)   Notwithstanding  anything  contained  in               sub-rule               (2)   the  management  may impose any  one  or               more of               the   following    punishments   on    Welfare               Officers               (i) Censure;               (ii)  Withholding   of  increments   including               stoppage at an efficiency bar;               (iii)  reduction  to a lower stage in  a  time               scale;               (iv)  suspension; and 371               (v)   dismissal  or termination of service  in               any other manner; Provided that no order of punishment shall be passed against the  Welfare  Officer  unless he has been  informed  of  the grounds  on which it is proposed to take action and given  a reasonable  opportunity  of defending  himself  against  the action proposed to, be taken in regard to him; Provided  further that the management shall not  impose  any punishment other than censure except with the previous  con- currence of the Labour Commissioner, Punjab.               (4)   The Labour Commissioner, Punjab,  before               passing  orders  on  a  reference  made  under               second  proviso to, sub-rule (3),  shall  give               the Welfare Officer an opportunity of  showing               cause against the action proposed to be taken,               against  him  and if necessary, may  hear  the



             parties in person.               (5)   If   the  Labour  Commissioner,   on   a               reference made to him under the second proviso               to sub-rule (3) of rule 6, refuses to give his               concurrence, the management may appeal to  the               State  Government within thirty days from  the               date  of  the receipt of  such  refusal.   The               decision  of  the State  Government  shall  be               final and binding.               (6)   A   Welfare   Officer  upon   whom   the               punishment mentioned in clause (v) of sub-rule               (3)  is  imposed  may  appeal  to  the   State               Government  against  the order  of  punishment               within thirty days from the date of receipt of               the  order by him.  The decision of the  State               Government shall be final and binding.               (7)   The  State  Government  may  pass   such               interim order as may be necessary pending  the               decision of appeal filed under sub-rule (5) or               sub-rule (6). It  would  be noticed that it is under rule  6(6)  that  the impugned order has been passed by respondent No. 2, and  the question  which has first to be considered in  dealing  with the  present appeal is whether respondent No. 2 can be  said to be a tribunal within the meaning of Art. 136(1) so as  to justify  the  appellant to bring the appellate  decision  of respondent  No. 2 before this Court by special  leave  under the said Article.               Art. 136(1) reads thus :-               "   Notwithstanding anything in this  Chapter,               the               Supreme  Court may, in its  discretion,  grant               special leave 372 .lm15 to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any  court or tribunal in the territory of India." Mr. Goyal contends that respondent No. 2, is not a  tribunal under  Art.  1 3 6(1) and so, the impugned  appellate  order passed  by it cannot be challenged by appeal under the  said article.   It would be noticed that Art.136(1) refers  to  a tribunal  as  distinguished from a  court.   The  expression "court"  in the context denotes a tribunal  .constituted  by the  State  as a part of the ordinary hierarchy  of  ,courts which  are  invested  with  the  State’s  inherent  judicial powers.  A sovereign State discharges legislative, executive and   judicial   functions  and   can   legitimately   claim corresponding  powers  which are described  as  legislative, executive and judicial powers.  Under our Constitution,  the judicial  functions  and powers of the State  are  primarily conferred on the ordinary courts which have been constituted under its relevant provisions.  The Constitution  recognised a  hierarchy  of  courts  and  to  their  adjudication   are normally  .,entrusted  all  disputes  between  citizens  and citizens  as  well as between the citizens  and  the  State. These  courts can be described as ordinary courts  of  civil judicature.  They are governed by their prescribed rules  of procedure  and  they  deal with questions of  fact  and  law raised before them by adopting a process which is  described as   judicial  process.   The  powers  which  these   courts exercise, are judicial powers, the functions they  discharge are  judicial  functions and the decisions  they  reach  and pronounce are judicial decisions. In   every   State  there  are  administrative   bodies   or



authorities  which are required to deal with matters  within their  jurisdiction  in an administrative manner  and  their decisions  are  described as administrative  decisions.   In reaching  their  administrative  decisions,   administrative bodies  can and often to take into consideration  ,questions of policy.  It is not unlikely that even in this process  of reaching administrative decisions, the administrative bodies or  authorities are required to act fairly  and  objectively and  would  in many cases have to follow the  principles  of natural  justice;  but  the  authority  to  reach  decisions conferred on such administrative bodies is clearly  distinct and  separate from the judicial power conferred  on  courts, and  the decisions pronounced by administrative  bodies  are similarly  distinct and separate in character from  judicial decisions pronounced by courts. Tribunals which fall within the purview of Art.136(1) occupy a special of their own under the scheme of our Consti-  373 tution.  Special matters and questions are entrusted to them for  their decision and in that sense, they share  with  the courts  one common characteristic: both the courts  and  the tribunals  are " constituted by the State and  are  invested with judicial as distinguished from purely administrative or executive  functions." (vide Durga Shankar Mehta  v.  Thakur Raghuraj Singh and Others) (1).  They are both  adjudicating bodies  and  they deal with and finally  determine  disputes between  parties which are entrusted to their  jurisdiction. The procedure followed by the courts is regularly prescribed and  in  discharging their functions  and  exercising  their powers,  the courts have to conform to that procedure.   The procedure which the tribunals have to follow may not  always be so strictly prescribed, but the approach adopted by  both the courts and the tribunals is substantially the same,  and there is no essential difference between the functions  that they discharge.  As in the case of courts, so in the case of tribunals,  it is the State’s inherent judicial power  which has been transferred and by virtue of the said power, it  is the State’s inherent judicial function which they discharge. Judicial  functions  and  judicial powers  are  one  of  the essential   attributes   of  a  sovereign  State,   and   on considerations  of policy, the State transfers its  judicial functions and powers mainly to the courts established by the Constitution;  -but that does not affect the  competence  of the  State, by appropriate measures, to transfer a  part  of its judicial powers and functions to tribunals by entrusting to  them the task of adjudicating upon special  matters  and disputes between parties.  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. This  problem has been considered by this Court  on  several occasions and judicial decisions show that it arises in  two different forms.  Sometimes, the question which is posed for the decision of this Court is whether a particular  decision reached  by an authority or a body can be corrected  by  the issue of a writ of certiorari by the High Courts in exercise of  their  jurisdiction under Art.226; and in  dealing  with this  question, it becomes necessary to enquire whether  the impugned  decision is a judicial or quasi-judicial  decision and whether in reaching it, the authority concerned was  re- quired   to  adopt  a  judicial  approach  and  follow   the



principles of (1)  [1955] 1 S.C.R. 267 at P. 272. 34 natural  justice.   We will very briefly indicate  how  this question  has been considered by this Court by referring  to some important decisions in that behalf.  In the Province of Bombay  v. Kusaldas S. Advani and Others,(1) this Court  had to  consider  whether  the powers given  to  the  Provincial Government  under  sections  10 and 12 of  the  Bombay  Land Requisition   Ordinance  (V  of  1947)  required   that   in exercising them, the Government had to act judicially in the matter  of  making  an  order  of  requisition  under   s.3. According to the majority decision, the relevant powers  and the scheme of the Ordinance did not make it incumbent on the State Government to act judicially in exercising its  powers under  s.3. Dealing with this question, Das J., as  he  then was, deduced two principles from an elaborate examination of the relevant decisions cited before the Court.  He held that if a statute empowers in authority not being a court in  the ordinary  sense  to decide disputes arising out of  a  claim made  by one party under the statute which claim is  opposed by  another party and to determine the respective rights  of the contesting parties who are opposed to each other,  there is a lis and prima facie, and in the absence of anything  in the statute to the contrary, it is the duty of the authority to  act  judicially and the decision of the authority  is  a quasi-judicial  act.  The second principle which he  deduced was  that if a statutory body has power to do any act  which will  prejudicially affect the subject, then although  there are  not  two  parties apart from  the  authority,  and  the contest is between the authority proposing to do the act and the  subject  opposing it, the final  determination  of  the authority  will  yet be a quasi-judicial  act  provided  the authority  is required by the statute to act judicially  (p. 725).   Kania, C. J., on the other hand, observed  that  the true  position  was  that  "when the  law  under  which  the authority  is making a decision itself requires  a  judicial approach,  the decision would be a quasi-judicial  decision. Prescribed  forms  are  not necessary  to  make  an  inquiry judicial,   provided  in  coming  to  the  decision,   well- recognised  principles  of  approach  are  required  to   be followed." (p. 633). Before we proceed to the next decision of this Court bearing on this point, we would like to refer to the recent decision of the House of Lords in Ridge v. Baldwin and Others ( 2 ) . In  that  case,  the  House of Lords  had  to  consider  the question as to whether the watch committee in exercising its authority  under s. 191 of the Municipal  Corporations  Act, 1882,  was  required  to act judicially or  not.   The  case itself arose out of the dismissal of the appellant Ridge who had been appointed chief constable of a borough police (1) [1950] S.C.R. 621. (2) L.R. [1964] A.C. 40. 375 force  in 1956.  On October 28, 1957, he was suspended  from duty by the borough watch committee.  On February 28,  1958, he was acquitted by the jury on the criminal charges against him.   On  March 6, 1958, on a  charge  alleging  corruption against  the  appellant  Donovan, J.  who  tried  the  case, referred  to the boroughs police force and remarked  on  its need for a leader "who will be a new influence and who  will set   a  different  example  from  that  which  has   lately obtained." After his acquittal, the appellant applied to  be reinstated,  but on March 7, 1958, the watch committee at  a meeting decided that he had been negligent in the  discharge



of his duties as chief constable, and, in purported exercise of  the powers conferred on them by s. 191(4) of the Act  of 1882,  dismissed him from that office.  Before doing so,  no specific  charge  had been formulated against him,  but  the watch  committee acted. inter alia, on the  appellant’s  own statements in evidence and the observations made by  Donovan J.  during the course of the trial.  The appellant  appealed to  the Home Secretary, but his appeal was dismissed on  the ground that there was sufficient material on which the watch committee  could properly exercise their power of  dismissal under  s.  191(4).  It is this dismissal which  led  to  the action  by the appellant against the watch committee  for  a declaration that his dismissal was illegal, ultra vires  and void,  and  payment  of  salary  from  March  7,  1958,  or, alternatively,  payment  of  pension  from  that  date   and damages.  That is how the question which arose for  decision was whether the watch committee acting under s.191(4) had to act judicially. The majority decision was that it had to act judicially, and since  the order of dismissal was passed without  furnishing the appellant with a specific charge, it was a nullity.   In dealing  with  the  appellant’s contention  that  the  watch committee had to act judicially, Lord Reid has  exhaustively considered the judicial decisions bearing on this point.  He referred in particular to the following observation made  by Atkin  L.  J. in Rex v. Electricity  Commissioners,  Exparte London  Electricity,  Joint  Committee  Co.  (1920)  Ltd.  & Others(-’)  :  "Wherever any body of  persons  having  legal authority  to  determine questions affecting the  rights  of subjects,  and  having the duty to act  judicially,  act  in excess  of  their legal authority, they are subject  to  the controlling  jurisdiction  of  the  King’s  Bench   Division exercised  in these writs." This observation was later  read by Lord Hewart, C.J. in Rex v. Legislative Committee of  the Church  Assembly, Exparte Havnes Smith(2), as  meaning  that before the decision of any authority could be sub- (1) [1924] 1 K.B.D. 171, 205. 3Sup./65-8 (2) [1928] 1 K.B.D. 411. 376 jected  to  the writ jurisdiction, it must appear  that  the said body should have legal authority to determine questions affecting  the  rights  of subjects and  should  further  be required  to  act judicially.  The duty to  act  judicially, observed Lord Hewart, C. J., is an ingredient which, if  the test is to be satisfied, must be present. The Privy Council in Nakkuda Ali v. Jayaratne(1), had  taken the  same  view.   Dealing  with the  order  passed  by  the Controller of Textiles in Ceylon under a Defence  Regulation which   empowered  him  to  cancel  a  licence  "where   the controller has reasonable grounds to believe that any dealer is  unfit to be allowed to continue as a dealer." the  Privy Council  held that it did not follow from the words  of  the relevant  Defence  Regulation that the  controller  must  be acting  judicially  in exercising the power.  It is  a  long step,  said the Privy Council, in the argument to  say  that because  a  man  is enjoined that he must  not  take  action unless  he has reasonable ground for believing something  he can  only  arrive  ,at that belief by a  course  of  conduct analogous  to  the judicial process.  And yet,  unless  that proposition is valid, there is really no ground for  holding that the controller is acting judicially or  quasijudicially when  he acts under this regulation.  If he is not  under  a duty  so to act, then it would not be according to law  that his decision should be amenable to review and, if necessary,



to avoidance by the procedure of certiorari. Having set out these decisions, Lord Reid expressed his dis- sent from the gloss which has been put by Lord Hewart C.  J. in  Rex v. Legislative Committee of the Church Assembly 2  ) on  the observations of Atkin, L. J. in Rex  v.  Electricity Commissioners("), and the view taken by the Privy Council in Nakkuda  Ali(1);  and he held that "the power  of  dismissal conferred on the watch committee by s. 191(4) could not have been  exercised and cannot now be exercised until the  watch committee  have  informed the constable of  the  grounds  on which  they propose to proceed and have given him  a  proper opportunity  to present his case in defence." (p.  79).   In other   words,  according  to  Lord  Reid’s  judgment,   the necessity  to  follow  judicial procedure  and  observe  the principles of natural justice, flows from the nature of  the decision  which the watch committee had been  authorised  to reach under s. 191(4).  It would thus be seen that the  area where the principles of natural justice have to be  followed and  judicial approach has to be adopted, has  become  wider and consequently, (2)  (1928] 1 K.B.D. 411 (1) [1951] A.C. 66, 77.                  (3) [1924] 1 K. B.D. 411. 377 the horizon of the writ jurisdiction has been extended in  a corresponding  measure.   In dealing with  questions  as  to whether any impugned orders could be revised under Art.  226 of  our  Constitution, the test prescribed by Lord  Reid  in this judgment may afford considerable assistance. In Nagendra Nath Bora & Another v. The Commissioner of Hills Division  and  Appeals, Assam, & Ors.(1) this Court  had  to consider  whether the jurisdiction of the High  Court  under Arts.  226  and  227 of the Constitution  could  be  invoked against the decision of the appellate authority  constituted under the Eastern Bengal and Assam Excise Act, 1910 (E.   B. & Assam Act 1 of 1910).  The scheme of the Act was  examined and  it  was noticed that the Act had laid  down  a  regular hierarchy  of  authorities, one above the  other,  with  the right  of  hearing appeals or revisions.  It  is  true  that there was no provision in the Act which required, in express terms,  that reasoned orders should be recorded; but in  the context of the subject-matter of the rules, it was held that it  was  the  duty  of  the  appellate  authority  to   hear judicially,  that  is  to  say,  in  an  objective   manner, impartially  and after giving reasonable opportunity to  the parties concerned in the dispute, to place their  respective cases before it. (p. 1254).  On that view of the matter, the decision  of the appellate authority was theoretically  held to  be subject to the jurisdiction of the High  Court  under Art. 226 to issue a writ of certiorari. In Shivji Nathubhai v. The Union of India & Others(2),  this Court held that in exercising its power of review under rule 54  of  the  Mineral Concessions Rules,  1949,  the  Central Government  acted judicially and not  administratively.   In consequence,  the  decision of the  Central  Government  was liable to be questioned on proper grounds under Art. 226  of the  Constitution.   The question as to  whether  the  State Government  in  granting  the  mining  lease  acted   merely administratively  or not, was not considered in  this  case, because it was enough for the purpose of deciding the appeal that the powers of review were not administrative powers and exercise of the said powers would be subject to  examination by the High Courts under Art. 226. It  will be noticed that in these cases, this Court was  not called  upon  to  consider  whether  the  authorities  whose



decisions  were challenged under Art. 226 were tribunals  or not,  because  the requirement that  the  impugned  decision should  be that of a tribunal which has been  prescribed  by AA. 136(1) is not to be found (1) [1958] S.C.R. 1240. (2) [1960] 2 S.C.R. 775. 378 in Art. 226; and so, the only point which fell for  decision was  whether  the impugned orders amounted  to  judicial  or quasi-judicial decisions liable to be corrected by the issue of  a  writ  of certiorari under Art.  226,  or  not.   That problem is different from the one which we have to decide in the present case. Let  us now refer to some of the decisions which  deal  with the problem with which we are concerned.  The first decision where   this   question  was  elaborately   considered   was pronounced  in the case of The Bharat Bank Ltd.,  Delhi,  v. Employees  of  the  Bharat Bank Ltd., and  the  Bharat  Bank Employees’   Union,  Delhi(1).   In  that  case,  an   award pronounced by an Industrial Tribunal under the provisions of the Industrial Disputes Act, 1947, was brought to this Court in  appeal  by  special leave under  Art.  136(1),  and  the respondents’  preliminary objection that the appeal was  in- competent,  raised the problem as to whether the  Industrial Tribunal  was  a  tribunal under Art. 136(1)  or  not.   The majority  decision  was  in  favour of  the  view  that  the Industrial  Tribunal  is a tribunal within  the  meaning  of -Art.  136(1).   Mahajan  J., who  delivered  the  principal judgment in support of the majority view on this point, held that "industrial tribunals though they are not  full-fledged Courts, yet exercise quasi-judicial functions and are within the  ambit  of the word ’tribunal’ in Art. 136 of  the  Con- stitution."  (p.  476).   "The  condition  precedent,"  said Mahajan  J.,  "for bringing a tribunal within the  ambit  of Art.  136  is that it should be constituted  by  the  State. Again, a tribunal would be outside the ambit of Art. 136  if it  is not invested with any part of the judicial  functions of  the  State  but  discharges  purely  administrative   or executive  duties (p. 478)." It is in this  connection  that the  learned Judge added that tribunals, however, which  are found invested with certain functions of a court of  justice and  have some of its trappings also would fall  within  the ambit of Art. 136, because, according to the learned  Judge, the  intention  of the Constitution by the use of  the  word "tribunal"  in  the article seems to have  been  to  include within  the scope of Art. 136 tribunals adomed with  similar trappings  as  Court  but strictly not  coming  within  that definition  (p.  474).  The fact that awards  pronounced  by Industrial Tribunals become enforceable under s. 17A subject to  the  conditions  therein prescribed, did  not  make  any difference  to  the  legal  position  that  the   Industrial Tribunals were tribunals within the meaning of Art. 136(1). The majority decision in the case of the Bharat Bank(1),  to which we have just referred was adopted unanimously by  this Court (1)  [19501 S.C.R. 459. 379 in  the  case of Durga Skankar Mehta(1).  Speaking  for  the Court, Mukherjea, J., observed that it was now  well-settled by the majority decision of the Court in the case of  Bharat Bank (2 ) that the expression "Tribunal" as used in Art. 136 does not mean the same thing as "Court" but includes, within its  ambit,  all  adjudicating  bodies,  provided  they  are constituted  by the State and are invested with judicial  as distinguished   from  purely  administrative  or   executive



functions, subject, of course, to the exception specifically provided for by Art. 136(2). In  M/s.  Harinagar Sugar Mills Ltd. v. Shyam Sundar  Jhunj- hunwala and Others(3), the question which arose for decision of  this Court was whether the Central Government, while  it exercises  its  appellate  power  Under  s.  111(3)  of  the Companies Act, 1956 (No.  1 of 1956), was a tribunal  within the  meaning of Art. 136(1).  In considering this  question, the  scheme  of  the  relevant provisions  of  the  Act  was examined,  the earlier decisions bearing on the  point  were taken into account and it was held that s. 1 1 1(3) required that  the Central Government, while acting as  an  appellate authority, had to act judicially and was entrusted with  the judicial  powers of the State to adjudicate upon  rights  of the parties in civil matters when there is a lis between the contesting  parties, and so, the conclusion  was  inevitable that it acts as a tribunal and not as an executive body.  In that connection, Shah J., who spoke for the majority of  the Court,  observed  that the proceedings  before  the  Central Government  have all the trappings of a  judicial  tribunal; and  by  way of illustration, he referred to the  fact  that pleadings  had to be filed, evidence had to be led, and  the disputes   had  to  be  decided  according  to   law   after considering the representations made by the parties. Hidayatullah J., differed from the majority decision on  the question as to the final order which should be passed in the said  appeals.   He held that there was no  reason  for  the Central  Government to have passed the impugned  order,  and so,  he wanted the appeals to be allowed.   Accordingly,  he directed  that  the impugned order should be set  aside  and appeals  should be allowed with costs.  On  the  preliminary question  as  to  whether the appeals  were  competent,  the learned  Judge  agreed with the majority decision  that  the Central Government was a tribunal within the meaning of Art. 136(1).  Construing Art. 136(1), the learned Judge  observed that  courts  and tribunals act judicially  in  both  senses which he had earlier discussed, and in the term "Court"  are included the ordinary and (1)  [1955] 1 S.C.R. 257. (3) [1962] 2 S.C.R. 339, 352. (2) (1950] S.C.R. 459. 380 permanent tribunals and in the term "tribunal" are  included all others, which are not so included.  Among the powers  of the  State, said Hidayatullah J., is included the  power  to decide  controversies between parties.  This is  undoubtedly one of the attributes of the State, and is aptly called  the judicial  power  of the State.   Broadly  speaking,  certain special  matters go before tribunals, and the  residue  goes before  the  ordinary  Courts of  Civil  Judicature.   Their procedures may differ, but the functions are not essentially different (pp. 362-63).  Thus, it would be noticed that  all the  learned  Judges  who heard this case,  were  agreed  in taking the view that the essential power which was exercised by the courts and tribunals alike was the judicial power  of the State. In  Jaswant  Sugar Mills Ltd., Meerut  v.  Lakshmichand  and Others(1), this Court has held that the Conciliation Officer acting  under  clause 29 of the Order  promulgated  in  1954 under  the  U.P. Industrial Disputes Act, 1947, has  to  act judicially  in granting or refusing permission to alter  the terms  of  employment  of workmen at  the  instance  of  the employer, but even so, he was not a tribunal, because he was not invested with the judicial power of the State, as he was empowered merely to lift the ban statutorily imposed on  the



employer’s  rights,  and was not authorised to  pronounce  a final  and binding decision in any dispute.  That is why  an appeal preferred against the order of the said  Conciliation Officer was held to be incompetent under Art. 136(1).   "The condition precedent for bringing a tribunal within the ambit of Art. 136," observed Shah J., who spoke for the Court, "is that  it should be constituted by the State;" and  he  added that a tribunal would be outside the ambit of Art. 136 if it is  not invested with any part of the judicial functions  of the State but discharges purely administrative or  executive duties.    After  examining  the  scheme  of  the   relevant provision,  it  was observed that "in  deciding  whether  an authority  required  to  act judicially  when  dealing  with matters  affecting rights of citizens may be regarded  as  a tribunal, though not a Court, the principal incident is  the investiture of the ’trappings of a court’-such as  authority to determine matters in cases initiated by parties,  sitting in  public, power to compel attendance of witnesses  and  to examine  them  on  oath, and others ....  Some,  though  not necessarily  all  such trappings will  ordinarily  make  the authority  which  is  under  a duty  to  act  judicially,  a ’tribunal’." In  the Engineering Mazdoor Sabha representing  Workmen  em- ployed under the Hind Cycles Ltd. & Anr. v. The Hind  Cycles Ltd.,  Bombay(2), the question which arose for  decision  of this (1) [1963] Supp.  I S.C.R. 242, 259-60. (2) [1963] Supp.  I S.CR. 625. 381 Court  was whether an arbitrator appointed under s.  10A  of the  Industrial Disputes Act, 1947 (No. 14 of 1947)  can  be said  to be a tribunal under Art. 136(1), and  in  rendering the  answer  to this question in the  negative,  this  Court observed that apart from the importance of the trappings  of a  Court, the basic and essential condition which  makes  an authority  or a body a tribunal under Art. 136, is  that  it should  be constituted by the State and should  be  invested with  the  State’s inherent judicial power.   Even  so,  the judgment has referred to the trappings of a Court and it has been  observed  that  sometimes a rough and  ready  test  is applied in determining the status of an adjudicating body by enquiring whether the said body or authority is clothed with the trappings of a court.  In that connection, it was  added that the presence of the said trappings does not necessarily make  the Tribunal a Court.  The Arbitrator appointed  under s. 10 A was, however, held to be not a tribunal, because his appointment  was essentially based on the agreement  of  the parties  concerned  and as such, his position  was  somewhat analogous  to  that  of  the  arbitrator  appointed  by  the parties. In  Indo-China  Steam Navigation Co. Ltd.  v.  Jasjit  Singh Addl. Collector of Customs, Calcutta and Ors.,(1) the status of  the  Central Board of Revenue exercising  its  appellate power under s. 190 of the Sea Customs Act, 1878 and that  of the  Central  Government exercising its power under  s.  191 came to be examined.  It was common ground that the  Customs Officer  exercising his authority under s. 167 of  the  said Act  was not a ’Court’ or a ’Tribunal’; nevertheless, it  as held  that  the  Central Board of Revenue  and  the  Central Government exercising their respective powers under ss.  190 and 191 were ’tribunals’ under Art. 136(1).  This conclusion proceeded on the main ground that both the appellate and the revisional  authorities  in question are invested  with  the judicial  power  of  the  State  and  are  required  to  act judicially.  On this occasion, again, this Court referred to



the  trappings of a Court and observed that the presence  of some  of  the trappings of a Court may assist  to  determine whether the proceedings before the authority in question are judicial  or not, though it was emphasised that  apart  from the  said test of trappings, the basic test was whether  the authority in question had been constituted by the State  and had  been  given  a part of the  State’s  inherent  judicial powers. It  would thus be seen that in dealing with the question  as to  whether  respondent  No.  2,  while  it  exercises   its appellate  power under Rule 6(6), is a tribunal  under  Art. 136(1), we must enquire (1)  [1964] 6 S.CR. 594. 382 whether  respondent No. 2 has been clothed with the  State’s inherent  judicial  power  to  deal  with  disputes  between parties  and  determine  them  on  the  merits  fairly   and objectively.   That is the test which has been  consistently applied by this Court in considering the question about  the status  of  any body or authority as a tribunal  under  Art. 136(1).  Before we proceed to apply this test to  respondent No.  2’s status under R. 6(6), we think it is  necessary  to advert  to one aspect of the matter which sometimes  creates some confusion. We  have  referred to the three essential  attributes  of  a sovereign  State and indicated that one of these  attributes is  the  legislative power and legislative function  of  the State, and we have also seen that in determining the  status of  an authority dealing with disputes, we have  to  enquire whether  the power conferred on the said authority  or  body can  be  said to be judicial power conferred on  it  by  the State  by means of a statute or statutory rule.  The use  of the expression "judicial power" in this context proceeds  on the well-recognised concept of political science that  along with legislative and executive powers, judicial power  vests in  a sovereign State.  In countries where rigid  separation of  powers has been effected by written  Constitutions,  the position  is  very  different.   Take,  for  instance,   the Australian Constitution.  Section 71 of the Commonwealth  of Australia  Constitution  Act  (63 & 64  Viet.   Chapter  12) provides  that the judicial power of the Commonwealth  shall be vested in a Federal Supreme Court, to be called the  High Court of Australia, and in such other federal courts as  the Parliament  creates, and in such other courts as it  invests with federal jurisdiction.  The High Court shall consist  of a  Chief Justice, and so many other Justices, not less  than two,  as  the Parliament prescribes.  It is clear  that  the scheme  of sections 71 to 80 which form part of Chapter  III of the said Constitution, is that the judicial power of  the State  can  be conferred only on courts  recognised  by  the provisions  of the said Chapter.  In other words, it is  not competent to the Legislature in Australia to confer judicial power properly so-called on any body or authority other than or apart from the courts recognised by Ch. 111; and so,  the use of the expression "judicial power" or its conferment  in regard to tribunals which are not courts properly so-called, would   under   the  Australian   Constitution   be   wholly inappropriate.   If  any  tribunals other  than  courts  are established  and  power is given to them to <teal  with  and decide special disputes between the parties, the power which such  tribunals would exercise cannot be described as  judi- cial  power,  but  would have to  be  called  quasi-judicial power. 383 This  technical aspect of the matter which is present  under



the  Constitutions  based  on rigid  separation  of  powers, should not be ignored when we are dealing with the  question posed  under  Art. 136(1) of our  Constitution.   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.  Indeed, the fact that Art. 136(1) refers to  courts and tribunals and makes the determination, sentence or order passed  by them subject to appeal to this Court  by  special leave,  shows  that our Constitution assumes  that  judicial power  of the State can be vested in and exercised  by  both courts  and tribunals alike.  We have already seen that  the function  discharged  by courts and tribunals  mentioned  in Art.  136(1) is essentially the same, though the  nature  of the questions entrusted to their jurisdiction, the procedure required  to  be  followed  by  them,  and  the  extent  and character of their powers may be different. As  a result of the rigid separation of powers on which  the Australian Constitution is based, questions which arise  for decision of courts in Australia take a very different  form. Let  us refer to the decision of the Privy Council in  Shell Company  of  Australia,  Ltd.  v.  Federal  Commissioner  of Taxation(1),  by  way of illustration.  In  that  case,  the Privy  Council had to consider whether the Board  of  Review created  by s. 41 of the Federal Income-tax Assessment  Act, 1922-1925,  to review the decisions of the  Commissioner  of Taxation,  and whose members are to hold off˜ice  for  seven years, in a Court exercising the judicial power of the  Com- monwealth within the meaning of s. 71 of the Constitution of Australia.   If the answer had been in the affirmative,  the amending   section  by  which  the  Board  of   Review   was constituted,   would  have  been  invalid  because  of   the provisions  of  s. 71 of the Australian  Constitution.   The Privy  Council however, examined the functions of the  Board and  its  powers and considered the scheme of  the  relevant provisions  of the Taxation Act and came to  the  conclusion that  the Board of Review was not a Court and stood  in  the same position as the Commissioner.  It was observed that the orders  of the Board of Review were not made conclusive  for any purpose whatsoever, and that the decisions of the  Board were   made   the  equivalent  of  the   decision   of   the Commissioner.   In dealing with the status of the  Board  in the context of the require- (1)  [19311 A.C. 275. 384 ments  of S. 71 of the Australian Constitution, Lord  Sankey L. C. observed that "the authorities are clear to show  that there  are tribunals with many of the trappings of  a  Court which,  nevertheless, are not Courts in the strict sense  of exercising  judicial  power"  (p.  296).   It  is  in   this connection  that Lord Sankey referred to certain  attributes of Courts which he characterised as trappings.  The negative propositions  which  he  enunciated by  reference  to  these trappings, indicate that the presence of the trappings would not  make  the  Board  a Court and would  not  lead  to  the inference  that the judicatory power exercised by  tribunals was  judicial  power which courts alone  can  exercise.   It would  thus be noticed that the reference to  the  trappings was intended to show that the presence of the trappings does not  alter the character of the tribunal, the decisive  test being that judicial power under the Australian  Constitution can be conferred only on courts and not on tribunals.   When



we  refer to tribunals in dealing with the problem posed  by Art. 13 6 ( 1 ), it is necessary to bear in mind the context in which Lord Sankey referred to these trappings. There  is  another  point to which we would  like  to  refer before we part with this topic.  In the Attorney-General for Australia  v.  The Queen and the  Boilermakers’  Society  of Australia  and Others(1) an interesting question  arose  for the decision of the Court under ss. 29(1) (b) & (c) and 29-A of the Commonwealth Conciliation and Arbitration Act,  1904- 1952.    These   provisions  purported  to   vest   judicial power---even to the extent of fining a citizen or  depriving him  of  his  liberty-in  the  Court  of  Conciliation   and Arbitration  established  under the Act with  powers  of  an administrative,  arbitral and executive character.   It  was held  that  the said provisions were  invalid,  because  the function  of an industrial arbitrator is completely  outside the  realms  of  judicial  power  and  is  of  a   different character.   This decision also is based on the doctrine  of rigid   and  strict  separation  of  powers  on  which   the Australian  Constitution  is based.  Viscount  Simonds,  who delivered  the judgment of their Lordships, has referred  to the  structure of the Australian Constitution  and  observed that in the matter of conferring judicial powers, it was not open  to  the Parliament to turn from Chapter  III  to  some other  source  of  power (p. 313).  Indeed,  he  cited  with approval  the  observations  made  by  Griffith,  C.  J.  in Waterside  Workers’  Federation of  Australia  v.  Alexander (J.W.) Ltd.,(2) that it is impossible under the Constitution to confer such functions (i.e., judicial functions) upon any body  other than a court, nor can the difficulty be  avoided by designating a body, which is not in its (1) [1957] A.C. 288. (2) [1918] 25 C.L.R. 434, 442. 385 essential character a court, by that name, or by calling the functions  by another name.  In short, any attempt  to  vest any  part of the judicial power of the Commonwealth  in  any body other than a court is entirely ineffective. We have referred to these two decisions only for the purpose of  emphasising the fact that the  technical  considerations which  flow from the strict and rigid separation of  powers, would  not be applicable in dealing with the question  about the  status of respondent No. 2 by reference to Art.  136(1) of  our Constitution.  The use of the  expression  "judicial power"   in   the  context,  cannot  be   characterised   as constitutionally impermissible or inappropriate, because our Constitution  does  not provide, as does Chapter HI  of  the Australian  Constitution,  that judicial power can  be  con- ferred  only  on  courts  properly  so-called.   If  such  a consideration  was relevant and material, then it  would  no doubt,  be inappropriate to say that certain authorities  or bodies  which  are  given the power to  deal  with  disputes between  parties and finally determine them,  are  tribunals because the judicial power of the State has been statutorily transferred  to  them.  In that case, the  more  appropriate expression to use would be that the powers which they  exer- cise   are  quasi-judicial  in  character,   and   tribunals appointed under such a scheme of rigid separation of  powers cannot  be held to discharge the same judicial  function  as the  courts.   However, these considerations  are,  strictly speaking,  inapplicable to the Indian Constitution,  because though it is based on a broad separation of powers, there is no  rigidity or exclusiveness involved in it as under s.  71 as  well as other provisions of Ch.  III of  the  Australian Constitution;  and so, it would not be inappropriate to  say



that  the  main  test  in  determining  the  status  of  any authority  in the context of Art. 136(1) is whether  or  not inherent judicial power of the State has been transferred to it. Let  us  then examine the scheme of the Rules.  R. 6  as  we have  already seen, prescribes the conditions of service  of Welfare Officers.  Reading the second proviso to R. 6(3) and R. 6(4) together, it appears that if the management wants to impose any punishment other than censure, it is required  to secure the previous concurrence of the Labour  Commissioner; and  when an application is made to the Labour  Commissioner for  obtaining his concurrence, he has to give  the  Welfare Officer  an opportunity of showing cause against the  action proposed to be taken against him and if necessary, he has to hear  the  parties  in person.   This  provision  imposes  a limitation  on  the power of the management to  subject  the Welfare Officer to the punishments to which it applies. 386                              . In  the  present case, we are not called  upon  to  consider whether  the Labour Commissioner exercising his power  under R. 6(4) is a tribunal or not; for the purpose of the present appeal, we will assume that he is not a tribunal under  Art. 136(1). Rule  6(5) deals with a case where the  Labour  Commissioner refuses  to  give  his concurrence, and  in  that  case,  it confers on the management the right to make an appeal to the State  Government  within  the time prescribed  by  it.   It provides that the appellate decision of the State Government would be final and binding.  Similarly, R. 6(6) enables  the Welfare  Officer upon whom the punishment mentioned  in  cl. (v)   of  sub-rule  3  is  imposed  without  obtaining   the concurrence  of  the Labour Commissioner to  appeal  to  the State  Government,  and  it  provides  that  the   appellate decision  of the State Government in such a case would  also be final and binding. The  question which we have to decide in the present  appeal is  whether  the  State Government is  a  tribunal  when  it exercises  its authority under R. 6(5) or R. 6(6), No  rules have  been  made prescribing the procedure which  the  State Government should follow in dealing with appeals under these two   sub-rules,  and  there  is  no   statutory   provision conferring on the State Government any specific powers which are  usually associated with the trial in courts  and  which are  intended to help the court in reaching  its  decisions. The  requirements of procedure which is followed  in  courts and  the possession of subsidiary powers which are given  to courts  to  try  the cases before  them,  are  described  as trappings  of  the courts, and so, it may be  conceded  that these  trappings are not shown to exist in the case  of  the State  Government which hears appeals under R. 6(5)  and  R. 6(6).  But as we already stated, 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  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  test, there can be no doubt that the power  which  the State  Government exercises under R. 6(5) and R. 6(6)  is  a part  of the State’s judicial power.  It has been  conferred on  the State ;Government by a statutory Rule and it can  be



exercised in respect ,of disputes between the management and its Welfare Officers.  There  387 is, in that sense, a lis; there is affirmation by one  party and denial by another, and the dispute necessarily  involves the rights and obligations of the parties to it.  The  order which the State Government ultimately passes is described as its decision and it is made final and binding.  Besides,  it is  an  order  passed on appeal.   Having  regard  to  these distinctive  features  of the power conferred on  the  State Government by R. 6(5) and R. 6(6), we feel no hesitation  in holding  that  it is a Tribunal within the meaning  of  Art. 136(1). In  this connection, we may usefully recall the  observation made   by  Lord  Haldane  in  Local  Government   Board   v. Arlidge(1).   Said Lord Haldane "My Lords, when the duty  of deciding  an  appeal is imposed, those whose duty it  is  to decide  it  must act judicially.  They must  deal  with  the question  referred to them without bias, and they must  give to  each  of  the  parties  the  opportunity  of  adequately presenting  the case made.  The decision must be come to  in the  spirit and with the sense of responsibility of  a  tri- bunal whose duty it is to mete out justice.  But it does not follow that the procedure of every such tribunal must be the same." Having regard to the nature of the power conferred on the State Government, it seems to us clear that for 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.  We  are,  therefore, satisfied  that  the State Government  which  exercises  its appellate  jurisdiction  under R. 6(5) and R.  6(6)  of  the Rules  is a Tribunal within the meaning of Art. 136(1);  and so, the present appeal brought before this Court against the impugned  appellate  order passed by respondent  No.  2,  is competent.  In the result, the preliminary objection  raised by Mr. Goyal fails and must be rejected. That takes us to the merits of the impugned appellate order. Mr.  Setalvad for the appellant contends that  the  impugned order  is bad for two reasons.  He argues that the  relevant Rule   which   requires  the  concurrence  of   the   Labour Commissioner before the management can dismiss or  terminate the services of a Welfare Officer, is invalid inasmuch as it is outside the scope of the authority conferred on the State Government by s. 49(2) of the Act.  He also argues that  the impugned  order  is  invalid  for the  reason  that  in  the circumstances of this case, the appeal preferred by res- (1)  [1915] A.C. 120, 132. 388 pondent No. 1 before respondent No. 2 was incompetent  under r. 6(6). Let us first examine the contention about the invalidity  of the  Rule itself.  We have noticed that S. 49(2) of the  Act confers  on the State Government authority to prescribe  the duties, qualifications and conditions of service of officers employed under subsection (1); so that there can be no doubt that  the State Government would be competent to make  Rules which  prescribe  the  conditions  of  service  of   Welfare Officers.   The question is whether R. 6 which  purports  to prescribe such conditions of service is ultra vires S. 49(2) of  the  Act inasmuch as it imposes on  the  management  the obligation  to  secure the concurrence of  the  Labour  Com- missioner  before  inflicting  on the  Welfare  Officer  the punishments  to which the second proviso to R. 6(3)  refers.



In our opinion, the words "conditions of service" used in s. 49(2)  are wide enough to cover the proviso in question  and sub-rules   (4),  (5)  and  (6)  of  Rule  6.   Under   what circumstances  an employee’s services can be terminated  and subject to what conditions, can well be the subjectmatter of a  contract  of employment, because  conditions  of  service would take in the termination of services and  incidentally, the  conditions subject to which such termination  could  be brought  about.   If  that be so, we see  no  reason  why  a statutory rule imposing the obligation on the management  as prescribed by the second proviso in question should be  said to  fall  outside  S.  49(2) of  the  Act.   The  object  of conferring on the State Government the power to frame  Rules in that behalf obviously is to afford special protection  to Welfare Officers appointed under s. 49(1), and if respondent No. 2 thought that the best way to assure security of tenure to  ,such  officers was to require that they should  not  be dismissed  or  otherwise  punished  without  obtaining   the consent of the Labour Commissioner as required by the second proviso  to  R. 6(3), it would be difficult to hold  that  a Rule  made  by  respondent  No. 2  in  that  behalf  is  not justified  by  the  power  conferred  on  it  by  s.  49(2). Therefore,  we are not impressed by Mr. Setalvad’s  argument that the Rule in question is ultra vires or invalid. Mr.  Setalvad,  however,  is right in  contending  that  the appeal preferred by respondent No. 1 before respondent No. 2 was  incompetent.   Rule  6(6) no doubt  enables  a  Welfare Officer  to  make  an  appeal to  the  State  Government  if punishment  has  been  imposed  upon  him  contrary  to  the requirements  of the proviso to R. 6(3),  without  obtaining the  concurrence of the Labour Commissioner.  The scheme  of the relevant Rules appears to be that if the manage- 389 ment  applies  for concurrence, and the concurrence  is  not given by the Labour Commissioner, the management can  appeal under r. 6(5).  If the concurrence is given, or if a welfare officer  is dismissed without applying for  concurrence,  he may make an appeal under r. 6(6); but before such an  appeal can  be  competent,  it  must  appear  that  the  punishment mentioned  in  clause  (v) of subrule 3 of  R.  6  has  been imposed, upon him.  In the present case, it is difficult  to hold  that  any  such  punishment  has  been  imposed   upon respondent  No.  1. All that the appellant has done  in  the present case is to terminate the services of respondent  No. 1  by virtue of clause 4 of his terms of appointment.   When respondent  No.  1 was appointed a Welfare  Officer  by  the appellant, the terms of his employment were communicated  to him  by  a  letter dated March 2, 1956.  Clause  4  of  this communication  expressly provided that during the period  of probation, the appellant could terminate respondent No.  1’s services  without notice, and after confirmation,  with  one month’s notice or one month’s salary in lieu of notice.  The order  terminating  his services specifically refers  to  an earlier  letter addressed to him on September 23, 1961.   In this letter, the appellant expressly informed respondent No. 1  that if he did not proceed to Kymore Cement Works  within the time allowed to him, his services would stand terminated from September 26, 1961, and he would be paid his salary  up to  the 25th September, 1961, as well as one month’s  salary in lieu of notice and other dues as per Company’s rules.  It is thus clear that in terminating the services of respondent No.  1 the appellant was merely exercising its right to  put an  end  to  respondent No. 1’s services  with  one  month’s salary  in lieu of notice; and such an order cannot be  said to  amount  to  any punishment at all; it  is  an  order  of



discharge  served by the employer on his  employee  strictly within  the terms of the employee’s conditions  of  service. There is no    doubt  that  when  r.  6(3)  (v)  refers   to dismissal or termination of   service  in any other  manner, it takes in dismissal or termination of service which is  in the nature of a punitive termination of service. r.    6(3) makes it clear that clauses (i) to (v) refer to punishments which   could  be  imposed  on  Welfare  Officers   by   the management;  and so, before r. 6 (3) (v) can be  invoked  by respondent  No. 1, it must be shown that the termination  of his  services  was  in  the nature  of  a  punishment.   The termination  of  respondent  No. 1’s services  in  terms  of clause  4  of his conditions of service is no  more  than  a discharge,  and as such is not a punishment; and so,  it  is outside  r.  6(3) altogether.  Therefore, we  are  satisfied that  the  appeal  preferred  by  respondent  No.  1  before respondent No. 2 was not competent under rule 6(6). 390 My.  Goyal no doubt attempted to argue that though  in  form the order terminating respondent No. 1’s services  purported to be an order of discharge under clause 4 of his conditions of service, in substance it is an order of dismissal; and in support  of this argument, he referred us to the  fact  that before   the   impugned  order  was   passed,   considerable correspondence  passed between the parties, and  it  appears that  the  appellant  had transferred respondent  No.  1  to Kymore,  and  respondent No. 1 apparently did not  obey  the said order of transfer.  We have not thought it necessary to refer to this correspondence, because, in our opinion, it is not  possible to entertain Mr. Goyal’s contention  that  the order of discharge in the present case in substance  amounts to an order of dismissal.  It is true that the form in which the  impugned  order has been passed  will  not  necessarily determine the character of the termination of respondent No. 1’s  services.   If  respondent No. 1 had  proved  that  the impugned  order  amounts to his punishment,  that  no  doubt would have been a legitimate plea on which the competence of the  appeal to respondent No. 2 could have  been  sustained; but beyond making a vague allegation that the impugned order had been passed not bona fide, but for ulterior purpose,  no attempt  has been made to suggest, much less to prove,  that the  appellant  was  actuated  by  any  improper  motive  in terminating  his  services.  It does appear  that  when  the appellant found that respondent No. 1 was not willing to  go to  Kymore  Cement Works where he had been  transferred,  it deliberately  chose not to punish him, but to pass a  simple order  of discharge.  In such cases, it is no doubt open  to the Court to consider the substance of the matter and not to treat  the form in which the order terminating the  services of  an employee has been passed, conclusive.  But cases  may occur  in which it would be safe to conclude that the  order of discharge is a bona fide order of discharge and that  the employer  passed  such  an order, because  it  was  not  its intention  to cast any slur on its employee, even though  it thought  it  necessary to terminate his  services.   In  our opinion,  the  present  case  falls  under  this   category. Therefore,  we  are not impressed by the argument  that  the impugned  order amounts to a termination of service  in  any other manner contemplated by Rule 6(3) (v). The result is, the appeal is allowed, and the impugned order passed  by respondent No. 2 is set aside on the that it  has been passed without Jurisdiction.  Parties to bear their own costs. Bachawat,  J.-I  agree with the conclusions of  the  learned Chief Justice and the order proposed by him, and will add  a



few  words of my own.  The preliminary objection as  to  the maintainability 391 of  the appeal raises important questions of  interpretation of  Art.  136 of the Constitution.  In what  sense  did  the Constitution makers use the word "tribunal" in that  Article ? By what sign or distinctive attribute are we to  recognise a  tribunal  ? In Royal Acquarium & Summer  &  Winter-Garden Society  Ltd.  v. Parkinson (1), Fry, L. J. said  that  this word  has  not,  like the word  ’  court’  an  ascertainable meaning  in English law.  The word cannot have  the  popular meaning  of  a Court of justice, for  obviously  a  tribunal contemplated  by  Art.  136 is an  authority  other  than  a regular Court of justice.  I think that the context of  Art. 136  supplies the proper meaning of this word.  Article  136 concerns  the regulation of the judicial power of the  State vested  in  the  Courts and other  authorities.   The  great purpose  of  Art.  136  is  the  recognition  of  the  basic principle  that one Court having supreme judicial  power  in the  Republic will have appellate power over all Courts  and adjudicating authorities vested with the judicial powers  of the  State throughout the territory of India  barring  those constituted  by  or  under any law  relating  to  the  Armed Forces.   In this background, 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 powers  of  the State.  I think that an  the  decided  cases substantially  lay down this test.  Speaking on behalf of  a unanimous  Court in Durga Shankar Mehta v.  Thakur  Raghurai Singh and others (2) , B. K. Mukherjea, J. said :               "  It  is  now well settled  by  the  majority               decision  of this Court in the case of  Bharat               Bank  Ltd.  v. Employees of  the  Bharat  Bank               Ltd.(") that the expression ’Tribunal’ as used               in article 136 does not mean the same thing as               ’Court’  but includes, within its  ambit,  all               adjudicating   bodies,   provided   they   are               constituted by the State and are invested with               judicial   as   distinguished   from    purely               administrative or executive functions." According  to  this  test, the  adjudicating  body  must  be constituted  by  the  State  and  be  vested  with  judicial functions.   In  other decided cases, other  learned  Judges conveyed  the same idea in a somewhat different  form;  they have  said that in order to be a tribunal, the body must  be "invested  with .... part of the judicial functions  of  the State",  "delegates  of the judicial power  of  the  State", "invested  with  the State’s inherent  judicial  powers",  " exercise judicial powers of the State." (1)  [1892]  1 C.B.  431,446.                    (2)  [1955] S.C.R. 267, 272. (3) [1950] S.C.R. 459. ˜3Sup./65-9 392 Now, the expression "judicial power of the State" is not  to be  found  in  our  Constitution.   We  have  borrowed  this expression  from  the  Australian law.  By Art.  71  of  the Australian   Constitution,  "the  judicial  power   of   the Commonwealth" is vested in the Courts therein mentioned, and no  other  body or tribunal can exercise  that  power.   The Australian   cases  try  to  soften  the  rigour   of   this prohibition by giving a somewhat narrow construction to  the expression "judicial power of the Commonwealth".  Thus, they hold  that  an  arbitral power  in  relation  to  industrial disputes to ascertain and declare what in the opinion of the



arbitrator  are to be the respective rights and  liabilities of  the  parties  in relation to each other  is  not  to  be regarded as a judicial power of the Commonwealth within Art. 71  of the Australian Constitution.  See  Waterside  Workers Federation v. Alexander(), Attorney-General of Australia  v. Reginam  (2) . But our case law does not use the  expression "judicial power of the State" in the same narrow sense while giving the test of a tribunal under Art. 136 of the  Consti- tution.  Thus, the case of Bharat Bank Ltd. v. Employees  of the Bharat Bank Ltd.(") decided that an industrial  tribunal is  vested with the judicial functions of the State  and  is thus a tribunal within Art. 136.  In our Country, the  State (using  that  expression in the comprehensive sense  of  the Union and its component States) has inherent judicial powers or functions and the Courts and other authorities vested  by State  with judicial functions are regarded as delegates  of the State judicial powers.  Unlike Australia, in our country the  judicial power of the State may be vested not  only  in Courts but also in other authorities.  The Courts alone have no monopoly of this judicial power.  An authority other than a Court vested with the judicial power of the State in  this sense is regarded as a tribunal within Art. 136. In  Shell Co. of Australia v. Federal Commissioner of  Taxa- tion (4) (a case coming from Australia), Lord Sankey, L.  C. said that "there are tribunals with many of the trappings of a  court which, nevertheless, are not courts in  the  strict sense of exercising judicial power." The Lord Chancellor was obviously  pointing  out that a tribunal possessing  one  or more of the trappings of a Court was not necessarily a Court exercising  the  judicial  power of  the  Commonwealth  a.-, contemplated by Art. 71 of the Australian Constitution.  But it  does not follow that the investiture of some or many  of the  trappings  of a Court is an essential  attribute  of  a tribunal  contemplated  by  Art.  136.   Nevertheless,   our concept (1)  [1918]  25 C.L.R. 434, 463.              (2)  (1957]  2 All. 13.R. 45,50 P.C. (3) [1950] S.C.R. 459.                      (4) [1931]  A.C. 275, 296. 393 of  a  tribunal has been somehow coloured by  Lord  Sankey’s idea of a tribunal with the trappings of a Court.  In Bharat Bank  Ltdl. v. Employees of Bharat Bank Ltd(1), Mahajan,  J. said  that  Art. 136 includes within  its  scope  "tribunals adorned  with  similar trappings as Court but  strictly  not coming within that definition." In Jaswant Sugar Mills Ltd., Meerut  v. Lakshmichand(2), Shah, J. said that  in  deciding whether  an authority may be regarded as a tribunal,  though not  a Court, "the principal incident is the investiture  of the ’trappings of a court’." In Engineering Mazdoor Sabha v. Hind  Cycles Ltd., Bombay(), Gajendragadkar, J. (as he  then was) said that in determining "whether a particular body  or authority is a tribunal or not, sometimes a rough and  ready test  is  applied  by enquiring whether  the  said  body  or authority is clothed with the trappings of a court", but  he added  that "apart from the trappings of a Court, the  basic and essential condition which makes an authority or a body a tribunal under Art. 136, is that it should be constituted by the  State and should be invested with the State’s  inherent judicial power." Similar observations were made by the  same learned  Judge in Indo-China Steam Navigation Co. v.  Jasjit Singh(4).   In  trying  to  find out whether  a  body  is  a tribunal  within the meaning -of Art. 136, it is natural  to consider  whether the body has some of the trappings of  the Court.   If it has one or more of such trappings, it may  be



easier to pronounce the body to be a tribunal.  But we  must not forget that the investiture of the trappings of a  Court is not an essential attribute of a tribunal.  The basic test of a tribunal is that it is a body vested with the  judicial power  of the State.  Unless this basic concept is borne  in mind, the trappings of a Court may well become a trap and  a snare for the unwary. The limitations as also the full amplitude of the meaning of the word "tribunal" are thus to be found on a  consideration of  Art.  1 3 6 in all its parts, with such aid  as  may  be derived  from  other  Articles  of  the  Constitution.   The context of Art. 136 and the constitutional background impose the  limitation  that the tribunal must be  an  adjudicating authority  vested  with  the judicial power  of  the  State. Barring  this limitation, the word must receive a  wide  and liberal  construction.  The basic principle of Art.  136  is that  if a litigant feels that injustice has been done by  a Court  or any other body charged with the administration  of justice, there is one superior Court he may always  approach and which, in its discretion, may give him special leave  to appeal  so that justice may be done.  The plenitude  of  the residuary appellate power under (1)  [1950] S.C.R. 459.                 (2) [19631  Supp.  1 S.C.R. 242,260. (3) [19631 Supp.  I S.C.R. 625 at 631,633,641. (4) [1964]  6 S.C.R. 594. 394 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. An  authority  other than a Court may be vested  by  statute with judicial power in widely different circumstances, which it would be impossible and indeed inadvisable to attempt  to define  exhaustively.  The proper thing is to  examine  each case  as  it  arises, and to ascertain  whether  the  powers vested  in the authority can be truly described as  judicial functions or judicial powers of the State.  For the  purpose of  this  case,  it is sufficient to say  that  any  outside authority  empowered by the State to determine  conclusively the rights of two or more contending parties with regard  to any matter in controversy between them satisfies the test of an  authority vested with the judicial powers of  the  State and may be regarded as a tribunal within the meaning of Art. 136.   Such  a  power  of  adjudication  implies  that   the authority must act judicially and must determine the dispute by  ascertainment  of the relevant facts  on  the  materials before  it and by application of the relevant law  to  those facts.   This  test  of  a  tribunal  is  not  meant  to  be exhaustive,  and it may be that other bodies not  satisfying this test are also tribunals.  In order to be a tribunal, it is essential that the power of adjudication must be  derived from  a statute or a statutory rule.  An authority  or  body deriving its power of adjudication from an agreement of  the parties,  such as a private arbitrator or a tribunal  acting under s. 10-A of the Industrial Disputes Act, 1947, does not satisfy the test of a tribunal within Art. 136.  It  matters little  that  such a body or authority is  vested  with  the trappings  of a Court.  The Arbitration Act, 1940  vests  an arbitrator  with some of the trappings of a Court,  so  also the Industrial Disputes Act, 1947 vests an authority  acting under  s. 10-A of the Act with many of such  trappings,  and yet, such bodies and authorities are not tribunals. The word "tribunal" finds place in Art. 227 of the Constitu- tion also, and I think that there also the word has the same



meaning as in Art. 136. Now,  the question is whether the State Government  deciding an  appeal  under  R. 6(6) of the  Punjab  Welfare  Officers Recruitment and Conditions of Service Rules, 1952 (hereafter referred  to as the Service Rules) is a tribunal within  the meaning  of  Art.  136  of  the  Constitution.   The   State Government  made the Service Rules in exercise of its  rule- making power under s. 112 read with s.  49(2)     of     the Factories Act, 1947.  The Service Rules relate to 395 the  qualifications and conditions of service of  a  Welfare Officer  in  a factory and are well within  the  rule-making power.    Rule  6  of  the  Service  Rules  prescribes   the conditions  of service of a Welfare Officer.  Sub-rules  (1) and  (2) of R. 6 provide that the Welfare Officer must  have the appropriate status corresponding to the status of  other executive  heads  of  the factory,  and  his  conditions  of service  shall be the same as of other members of the  staff of  corresponding  status  in  the  factory.   Sub-rule  (3) ,empowers  the management to impose on the  Welfare  Officer one or more of the following punishments, viz., (i) Censure; (ii)  Withholding  of increments including  stoppage  at  an efficiency  bar; (iii) reduction to a lower stage in a  time scale; (iv) suspension; and (v) dismissal or termination  of service in any other manner.  The first proviso to  sub-rule (3)  provides  that no order of punishment shall  be  passed against  the Welfare Officer unless he has been informed  of the grounds on which it is proposed to take action and given a  reasonable opportunity of defending himself  against  the action  proposed to be taken in regard to him.   The  second proviso to sub-r. (3) imposes the further safeguard that the management  cannot impose any punishment on him  other  than censure  except with the previous concurrence of the  Labour Commissioner,  Punjab.   Sub-rule (4) provides  that  before passing  orders on a reference under the last  proviso,  the Labour  Commissioner  shall  give  the  Welfare  Officer  an opportunity  of showing cause against the  proposed  action, and, if necessary, may hear the parties in per-on.  Sub-rule (5)provides  that  if  the Labour  Commissioner  refuses  to givehis concurrence, the        management may appeal to the StateGovernment  within  thirty days from the  date  of  the receipt of such refusal  Sub-rule (6) provides that the Wel- fare  Officer  upon  whom the  punishment  of  dismissal  or termination  of service is imposed may appeal to  the  State Government  against  the order of punishment  within  thirty days from the date of the receipt of the order by him.   The decision of the State Government under both sub-rr. (5)  and (6)  is made final and binding.  Sub-rule (7)  empowers  the State  Government  to  pass such interim orders  as  may  be necessary  pending  the decision of the appeal  filed  under sub-r.  (5)  or  sub-r. (6).  If the  management  imposes  a punishment   without  making  a  reference  to  the   Labour Commissioner  and  without obtaining  his  concurrence,  the order of the management is a nullity and is liable to be set aside  on  this  ground alone on an appeal  by  the  Welfare Officer under sub-r. (6).  On the other hand, if the  action of the management does not amount to a punishment, an appeal under  sub-r.  (6)  is  incompetent  and  is  liable  to  be dismissed on that ground. 396 On  an appeal under sub-r. (6), the dispute is  whether  the action of the management amounts to a punishment and if  so, whether  the  punishment  should be  imposed.   The  dispute concerns the civil rights of the management and the  Welfare Officer.   The State Government is empowered to decide  this



dispute between the two contending parties.  Since the State Government  is empowered to give a decision, it  may  either confirm   the   punishment  or  set  it   aside   and   pass consequential orders such as an order of reinstatement.   As a  matter of fact, in the instant case the State  Government passed  an order of reinstatement.  By the express words  of sub-r. (6) of R. 6, the decision of the State Government  is made final and binding.  The appellate decision conclusively determines the rights of the contending parties with  regard to  the matter in controversy between them.   The  appellate function  and the power of conclusive determination  of  the civil  rights  of  the parties with  regard  to  matters  in controversy between them indicate that the State  Government 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  State  Government  may  devise  its   own procedure  consistently with its judicial  duty.   Normally, the  State  Government has the advantage of  enquiries  with regard to the subject-matter of the dispute at two  previous stages,  viz., once by the management under sub-r.  (3)  and again  by  the Labour Commissioner under  sub-r.  (4).   The State  Government  may also call upon the  parties  to  make their  representations in writing, at the  appellate  stage. As a matter of fact, in this case the parties were asked  to make representations, and they did so.  On ascertaining  the relevant  facts,  the State Government  may  decide  whether having regard to the relevant law, viz., the ordinary law of master  and servant as modified by the industrial  law,  the action of the management amounts to a punishment, and if so, whether such punishment should be imposed.  A  consideration of  all  these  matters  shows  that  the  State  Government deciding  an  appeal under R. 6(6) of the Service  Rules  is vested with the judicial powers of the State, and  satisfies the  test of a tribunal as contemplated by Art. 136  of  the Constitution.   It  follows that the  preliminary  objection that  the  appeal  under  Art. 136 does  not  lie,  must  be rejected. On  the merits, the respondent has very little to say.   The management  did  not seek to impose any  punishment  on  the Welfare Officer.  It did not hold any enquiry with regard to any charge against the respondent.  Under the conditions  of service, the 397 management  was  entitled to terminate the services  of  the respondent  on  payment  of one month’s salary  in  lieu  of notice.   In accordance with the conditions of service,  the management terminated his employment.  In no sense was  this order  of termination of employment a punishment within  the meaning  of  sub-r. (3) of R. 6 of the Service  Rules.   The order of the management did not entail any evil consequences to  the respondent; it did not deprive him of any  right  to which he was entitled.  As the action of the management  was not an order of punishment, the respondent was not  entitled to  appeal from this order to the State Government, nor  was the  State Government entitled to order  his  reinstatement. The appeal as also the order of the State Government  passed on the appeal are both misconceived.  The appellate order is not  only  erroneous but also without jurisdiction,  and  is liable to be set aside. Appeal allowed. 398