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PETITIONER: THE UNITED COMMERCIAL BANK LTD.

       Vs.

RESPONDENT: THEIR WORKMEN(and other cases)UNION  OF INDIA--Intervener.

DATE OF JUDGMENT: 09/04/1951

BENCH: KANIA, HIRALAL J. (CJ) BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BOSE, VIVIAN MUKHERJEA, B.K.

CITATION:  1951 AIR  230            1951 SCR  380  CITATOR INFO :  F          1956 SC 746  (4)  D          1989 SC1899  (27)

ACT:     Industrial  Disputes  Act (XIV of 1947), ss. 7,  8,  12, 16--Rules  under the Act, R. 5--Constitution of Tribunal  of three  members-Absence  of  one of three  members  on  other duty--Absent  member rejoining after some time--Validity  of awards made during his absence by the two remaining members, and  by  all  of them alter  he  rejoined--Construction  and effect of ss. 7, 8, 12 and Rule 5.

HEADNOTE:     The Central Government constituted an Industrial  Tribu- nal  under the Industrial Disputes Act, 1947, consisting  of A, B, and C 381 for deciding certain disputes and the Tribunal commenced its sittings  in September, 1949.  On the 23rd  November,  1949, the services of C were placed at the disposal of the  Minis- try  of  External Affairs as a member of  the  Indo-Pakistan Boundary  Disputes Tribunal, and the two remaining  members, after an objection raised by one side, continued to sit  and hear  the disputes. On the 20th February, 1950,  C  returned from the Boundary Disputes Tribunal  and began  to sit again with the other two members and  hear the further proceedings in  the  case  of disputes which were part  heard  and   not finally  decided on that date.  On the 20th May,  1950,  the Government issued a notification that C had" resumed  charge of his duties as a member of the All India Industrial Tribu- nal".   Some  awards were made by A and B  before  the  20th February, 1950, and some awards were made after that date by A, B and C together. Held, per KANIA, C.J., MEHR CHAND MAHAJAN, DAS and Bose JJ. (FAZL ALI and PATANJALI SASTRI JJ. dissenting) :--     (i)  when  C was appointed as a member of  the  Boundary Disputes Tribunal, his services "ceased to be available" and

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there arose "a vacancy" within the meaning of Sec. 8 of  the Industrial Disputes Act;     (ii)  under  the said section read with Rule  5  of  the Industrial  Disputes Rules, when a vacancy occurred  it  was obligatory  on the Government to notify its decision  as  to whether  it intended to fill up the vacancy or not,  and  if the Government decided not to fill up the vacancy, a notifi- cation  under Sec. 7 of the Act was essential to  constitute the  remaining members a Tribunal inasmuch as a Tribunal  of three  members  is a different Tribunal  altogether  from  a Tribunal consisting of two of them only;     (iii)  neither the fact that C began to sit again  along with  the two other members from the 20th.  February,  1950, nor  the notification of the 20th May, 1950, stating that  C had  "resumed  charge  of his duties as a  member"  of  that Tribunal  could be treated as an appointment to the  vacancy created  on  C’s  appointment as a member  of  the  Boundary Disputes Tribunal;     (iv)  awards  made by A and B after the  services  of  C ceased  to  be  available, and awards made  after  the  20th February,  1950, by A, B and C were not made by  a  Tribunal duly constituted under the Act and were void;     (v)  since  the two remaining members were  not  a  duly constituted Tribunal and the duty to work and decide was the joint responsibility of all the three members who originally constituted  the Tribunal, the matter was one 01 absence  of jurisdiction  and not a mere irregularity in the conduct  of proceedings,  and the defect could not be cured by  acquies- cence or estoppel. 382     Per  FAZL ALI and PATANJALI SASTRI  JJ.  (contra)--There was a ’vacancy’ within the meaning of Sec. 8 of the Act when the services of C were placed at the disposal of the  Bound- ary  Disputes Tribunal, which provided an occasion  for  the Government  to  exercise the discretion vested in  it  under Sec.  8 of the Act to fill up the vacancy or not.  The  fact that  the  Government decided not to fill  up  the  vacancy, could  not  render the Tribunal an  imperfectly  constituted Tribunal,  and  the proceedings could validly  be  continued before the Tribunal in spite of the vacancy. Further,  since the vacancy was a temporary one and was not filled up, C did not cease to be a member of the Tribunal and could therefore rejoin it as soon as he was free from the duties of his  new office. Even if it be assumed that it was necessary for  the Government  to  make an appointment under Sec.  8  (1),  the requirements  of  that section were complied  with,  when  C joined under the orders of the Government and that fact  was also notified by the Government on the 20th May, 1950.  Rule 5  of  the  Industrial Disputes Rules applies  only  when  a Tribunal  is  initially constituted.  It does not  apply  to appointments to fill vacancies.     Per MUKHERJEA J.--An Industrial Tribunal can be  consti- tuted  only in accordance with the provisions of Sec.  7  of the Industrial Disputes Act and unless a Tribunal is proper- ly  constituted, it cannot be invested with jurisdiction  to adjudicate  on industrial disputes.  Under sub-sec.  (2)  of Sec. 7, the number of members constituting the Tribunal  has to be determined by the appropriate Government and a  change in  the  number of members could be made therefore  only  in pursuance  of the provision contained in  that  sub-section. As Sec. 8 does not lay down that, in case the services of a. member of the Tribunal cease to be available and the Govern- ment does not choose to make a new appointment in his place, the remaining members should continue to form the ’tribunal, the constitution or reconstitution of the remaining  members

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as a Tribunal could be made only under Sec. 7 of the Act and as  there was n9 notification by the appropriate  Government under Sec. 7 constituting the two remaining members a Tribu- nal  under the Act during the absence of C, the  proceedings before  these two members and the awards made and signed  by them  only during C’s absence were void.  But, there was  no necessity for a fresh notification and a fresh  constitution of  the  Tribunal  when the absent member  returned  as  the original notification was still there unaltered and unamend- ed,  and  by virtue of this notification  alone,  the  three members  would  be competent to sit as a Tribunal  and  dis- charge  its  duties.   The Tribunal  was  thefore,  properly constituted  from  the 20th February, 1950, and  the  awards made by all the three members after that date were not  void for want of jurisdiction in the Tribunal.

JUDGMENT:      CIVIL   APPELLATE  JURISDICTION:   Appeals  by  special leave against an Award dated 31st July, 1950, 383 of the All India Industrial Tribunal (Bank Disputes):  Civil Appeals  Nos. 35 to 50 of 1951.  The facts of the  case  and the arguments of Counsel appear in the judgment.     C.K. Daphtary (R. J. Kolah, with him)for the  appellants in Civil Appeals Nos. 35, 36 and 37.     Jamshedji  Kanga (R. J. Kolah  with him) for the  appel- lant in Civil Appeal No. 38.     S. Chaudhuri (G. C. Mathur, with him) for the appellants in Civil Appeals Nos. 41, 43, 44, 45, 46 and 49.     S.  Chaudhuri (S.N. Mukherjee, with him) for the  appel- lants in Civil Appeals Nos. 48 and 50.     R.J. Kolah, for the appellants in Civil Appeals Nos. 39, 40 and 42.     Ram Lal Anand (Charan Das Puri, with him) for the appel- lant in Civil Appeal No. 47.     A.C. Gupta (M.M. Sen and R.K. Banerji, with him) for the respondents in Civil Appeals Nos. 35, 36, 40, 41, 42, 43 and 44,     M.M.  Sen for the respondents in Civil Appeals Nos.  37, 39, 45 and 46.     Niren  De (B.K. Chaudhary with him) for the  respondents in Civil Appeals Nos. 38 and 50.     T.R. Bhasin for the respondents in Civil Appeals Nos. 48 and 49.     M.C.  Setalvad, Attorney-General for India. Sikri,  with him) for the Intervener (Union of India) in Civil Appeal No. as.     1951.  April 9.  The judgment of Kania C.J,  Mehr  Chand Mahajan, S.R. Das and Vivian Bose JJ. was delivered by Kania C.J., Fazl Ali, Patanjali Sastri and Mukherjea JJ. delivered separate judgment s,     KANIA  C.J.--In these appeals the question  whether  the Industrial Tribunal (Bank Disputes) had jurisdiction to make the  awards has been directed by the Court to be tried as  a preliminary  issue.  ’the decision depends on the true  con- struction  of  sections 7, 8, 15 and 16  of  the  Industrial Disputes Act.  On 384 this question, the agreed statement of facts shows that by a notification of the Government of India dated the 13th June, 1949,  the  Central  Government  constituted  an  Industrial Tribunal  ’for the adjudication  of industrial  disputes  in banking companies consisting of  Mr. K.C. Sen, chairman, Mr.

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S.P.  Varma  and Mr. J.N. Mazumdar.  A  second  notification dated   the  24th  August, 1949, was  thereafter  issued  as follows :"In exercise of the powers conferred by sub-section (1) of section 8 of the Industrial Disputes Act, the Central Government  was  pleased to appoint  Mr.  N.  Chandrasekhara Aiyar as a member of the Industrial Tribunal constituted  by the notifications of the Government of India in the Ministry of  Labour  dated the lath June, 1949, in the place  of  Mr. S.P. Varma whose services have ceased to be available."  The Tribunal  commenced its regular sittings at Bombay from  the 12th  to the 16th of September, 1949. It thereafter  sat  at Delhi  and Patna between the 19th September, 1949,  and  3rd April,  1950. Further sittings were held, at some  of  which Mr. Mazumdar was absent on various dates and Mr. Chandrasek- hara  Aiyar  was absent from the 23rd November, 1949, to the 20th  of February, 1950, as his services were placed at  the disposal of the Ministry of External Affairs as a member  of the Indo-Pakistan Boundary  Disputes  Tribunal.  Between the 23rd November, 1949, and 20th February 1950, Mr. Sen and Mr. Mazumdar  together  sat at several places and  made  certain awards.  Those awards have been accepted by  the  Government under section 15 of the  Act and published in the Gazette as the awards of the Tribunal.  The Tribunal held its  sittings in  Bombay  to hear general issues from  the  16th  January, 1950,  and  concluded them on the 3rd April, 1950.   In  the agreed statement of facts, it is stated that the services of Mr. Chandrasekhara Aiyar were not available to the  Tribunal from  the afternoon of 23rd November, 1949, to the  forenoon of 20th February, 1950.   From the 16th January, 1950, up to 20th February, 1950, several matters, particularly including 15 items  covering, inter alia,  Issues 1, 2, 3, 4, 15,  23, 27, 28, 33, 34, 37 385 and  dealing  with the question of the jurisdiction  of  the Tribunal  in  respect  of officers  regarding  banks  having branches in more than one Province and banks in liquidation, question  of retrospective effect to be given to the  award, question relating to provident and guarantee fund and allow- ances  to special categories of workmen, were dealt with  by the  Tribunal.   From the notes of the  proceedings  of  the Tribunal it appears that as numerous banks and workmen  were parties  to the proceedings, some workmen who had not  found it  convenient to attend throughout appeared and  put  forth their views in respect of the aforesaid issues and questions after  Mr.  Chandrasekhara Aiyar started his work  from  the afternoon of the 20th February, 1950, again by sitting  with Mr. Sen and Mr. Mazumdar.     The jurisdiction of the Tribunal of the aforesaid  three persons  to make the award is disputed on two  grounds:  (1) That when Mr. Chandrasekhara Aiyar’s  services ceased to  be available,  as mentioned in the agreed statement  of  facts, the remaining two members had to be re-appointed to  consti- tute  a  Tribunal. (2) That when  Mr.  Chandrasekhara  Aiyar began  to sit again with Mr. Sen and Mr. Mazumdar  from  the forenoon of 20th February, 1950, it was imperative to  issue a  notification constituting a Tribunal under section  7  of the  Industrial Disputes Act.  The argument is that  in  the absence  of Mr. Chandrasekhara Aiyar the two members had  no jurisdiction to hear anything at all without the appropriate notification  and that Mr. Chandrasekhara  Aiyar’s  services having ceased to be available on the 23rd of November, 1949. he  cannot sit again with the other two members to form  the Tribunal in the absence of a notification under section 7.     In  order  to  appreciate the correct  position,  it  is necessary to consider the scheme of the Industrial  Disputes

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Act. It envisages the establishment of a Conciliation Board, a  Court of Inquiry and a Tribunal for adjudication.   Rele- vant  portions of sections 5, 6, 7, 8, 15 and 16 of the  Act which  only are material for the present discussion  run  as follows: -- 50 386      5.   (1) "The appropriate Government  may  as  occasion arises by notification in the official Gazette constitute  a Board  of  Conciliation for promoting the settlement  of  an industrial dispute.     (2) A Board shall consist of a chairman and two or  four other members, as the appropriate Government thinks fit.      (3) The chairman shall be an independent person and the other members shall be persons appointed in equal numbers to represent the parties to the dispute and any person appoint- ed to represent a party shall be appointed on the  recommen- dation of that party:                      *    *    *      (4)  A  Board, having the prescribed  quorum,  may  act notwithstanding  the absence of the  chairman or any of  its members or any vacancy in ifs number.     Provided that if the appropriate Government notifies the Board that the services of the chairman or any other  member have ceased to be available, the Board shall not act until a new  chairman  or member, as the case may be, has  been  ap- pointed."     6.   (1)  "The appropriate Government may   as  occasion arises by notification in the official Gazette constitute  a Court of Inquiry for inquiring into any matter appearing  to be connected with or relevant to an industrial dispute.     (2) A Court may consist of one independent person or  of such  number  of  independent persons   as  the  appropriate Government  may think fit and where a Court consists of  two or  more  members,  one of them shall be  appointed  as  the chairman.     (3)  A  Court,  having the prescribed  quorum,  may  act notwithstanding  the absence of the chairman or any  of  its members or any vacancy in its number.      Provided   that,  if the appropriate  Government  noti- fies the Court that the services of the chairman have ceased to be available, the Court shall not act until a new  chair- man has been appointed."      7.  (1) "The appropriate Government may constitute  one or more Industrial  Tribunals  for the 387 adjudication  of industrial disputes in accordance with  the provisions of this Act.     (2)  A Tribunal shall consist of such number of  members as the appropriate Government thinks fit. Where the Tribunal consists  of two or more members, one of them shall  be  ap- pointed as the chairman.     (3) Every member of the Tribunal shall be an independent person,     (a)  who  is or has been a Judge of a High  Court  or  a District Judge, or     (b)  is qualified for appointment as a Judge of  a  High Court:     Provided  that  the  appointment to a  Tribunal  of  any person not qualified under part (a) shall be made in consul- tation  with  the High Court of the Province  in  which  the Tribunal  has,  or is intended to have, its usual  place  of sitting."     8.   (1) "If the services of the chairman of a Board  or

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the chairman or other member of a Court or Tribunal cease to be  available at any time, the appropriate Government  shall in the case of a chairman, and may in the case of any  other member,  appoint another independent  person  to  fill   the vacancy,  and the proceedings shall be continued before  the Board, Court or Tribunal so reconstituted.     (2)  Where  a Court or Tribunal consists of  one  person only and his services cease to be available the  appropriate Government  shall appoint another independent person in  his place,  and  the proceedings shall be continued  before  the person so appointed.     (3)  Where the services of any member of a  Board  other than the chairman have ceased to be available, the appropri- ate  Government shall appoint  in  the manner  specified  in sub-section  (3)  of section 5 another person  to  take  his place,  and  the proceedings shall be continued  before  the Board so reconstituted."     15.  (1) "Where an industrial dispute has been  referred to  a Tribunal for adjudication, it shall hold its  proceed- ings expeditiously and shall, as soon as 388 practicable on the conclusion thereof, submit its award to the appropriate Government.    (2) On receipt of such award, the  appropriate Government shall by order in writing declare   the award to be binding:                     *        *             *     (4)  Save as provided in the proviso to sub-section  (3) of  section 19, an award declared to be binding  under  this section shah not be called in question in any manner."    16.   "The report of a Board or Court and the award of  a Tribunal shall be in writing and shall be signed by all  the members of the Board, Court or Tribunal, as the case may be:     Provided that nothing in this section shall be deemed to prevent  any  member of the Board, Court  or  Tribunal  from recording  a minute of dissent from  a report or award  from any  recommendation  made therein."   Confining  our  attention to the aspect  of  absence  of members  at  the sittings of the different bodies  and  what results  follow therefrom, it is clear that under section  5 (4)  when a member of a Board of Conciliation is  absent  or there is a vacancy, the Board is permitted to act,  notwith- standing  such  absence, provided there  is  the  prescribed quorum.  Such quorum is fixed by the rules framed under  the Act.  According to the proviso to this sub-section  however, if  the appropriate Government notifies the Board  that  the services of the chairman or any other member have ceased  to be  available, the Board shall not act until a new  chairman or a member, as the case may be, has been appointed.   Read- ing  these two parts together, it is therefore clear that  a distinction is drawn between the situation arising from  the absence of the chairman or any of its members and a  vacancy in  the  Board,  and the position when  the  Government  has intimated  that  the services of a chairman or  member  have ceased to be available.  The words  "having  the  prescribed quorum" put a further limitation on the right of the 389 remaining members of the Board to act, when all of them  are not  acting together. The proviso thus makes it  clear  that when the services of a chairman or member have ceased to  be available  and that fact has been notified to the  Board  by the  appropriate Government, the remaining members  have  no jurisdiction to act in the name of the Board.  Thus all  the contingencies  of  temporary or casual absence, as  well  as permanent vacancy, and the contingency of the chairman or  a

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member’s  services having ceased to  be  available are  con- templated and provided for.  In the same way and in the same terms,  provision is made in respect of the   Court  of  In- quiry  in  section 6 (3).  The provisions   as  regards  the Tribunal  are  found in section 7.  No other  section  deals with the establishment of the   Tribunal.  The first  clause empowers   the appropriate Government to constitute  one  or more industrial tribunals having the  functions allotted  to it  under the Act.  Sub clause (2) provides that a  Tribunal shall  consist of such number of members as the  appropriate Government  thinks  fit.   This clause therefore  authorizes the  appropriate  Government to fix the  number  of  members which  will constitute the Tribunal. Sub-clause (3) and  the proviso deal  with  the  qualifications of individuals to be members  with which we are not concerned.  Although in  this section there is no provision like sections 5 (1) and 6  (1) requiring a notification of the constitution of the Tribunal in the official Gazette, the deficiency is made up by rule 5 of  the Industrial Disputes Rules; 1949, framed by the  Gov- ernment under section 38 of the Act.  The rule provides that the appointment of a Board, Court or Tribunal "together with the  names of the persons constituting the Board,  Court  or Tribunal’ shall be notified in the official Gazette.  It  is therefore obligatory on the appropriate Government to notify the  composition of the Tribunal and also the names  of  the persons  constituting  the same.  In respect of  a  Tribunal which  is entrusted with the work of adjudicating upon  dis- putes  between employers and employees which have  not  been settled otherwise, this provision 390 s  absolutely  essential.   It cannot be left  in  doubt  to the  employers  or the employees as to who are  the  persons authorized  to adjudicate upon their disputes. This is  also in  accordance with notifications of appointments of  public servants  discharging judicial or  quasijudicial  functions. The  important  thing therefore to note is that  the  number forming the Tribunal and the hames of the members have  both to  be notified in the official Gazette for the  proper  and valid constitution of the Tribunal.     It is significant that there is no provision correspond- ing  to section 5 (4) or 6 (3) in section 7.  Section 15  of the  Act provides that when an industrial dispute  has  been referred  to a Tribunal for adjudication, it shall hold  its proceedings expeditiously and as soon as practicable and  at the  conclusion thereof submit its award to the  appropriate Government.  It is thus clear and indeed it is not  disputed that the tribunal as body should sit together and the  award has  to be he result of the joint deliberations of all  mem- bers of he Tribunal acting in a joint capacity.  Section  16 requires  that  all members of the Tribunal  shall  sign  he award.   This  again  emphasizes that the  function  of  the Tribunal  is joint and it is not open to any member  to  re- frain from signing the award.  If the award is not signed by all  members it will be invalid is it will not be the  award of the Tribunal.     In the light of the provisions of section 7 the question arising  for  consideration  is, what was the  duty  of  the Government  when the services of Mr.  Chandrashekhara  Aiyar ceased to be available. The two telegrams exchanged  between Mr. Sen and the Government show that the Government took the view  that a vacancy had occurred and they did not think  of filling it up at the time.  In the first place, on the  true construction  of the Act, was it not obligatory on the  Gov- ernment  to  notify to the contesting parties  that  it  had decided  not to fill up the vacancy ? Is it open to them  to

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leave the parties in doubt in respect of a Tribunal entrust- ed  with the work of adjudicating upon very  important  dis- putes between parties ? In our opinion, the whole 391 scheme  of the Act leads to the conclusion that the  Govern- ment  must notify its decision as to what it desired to  do, i.e., whether it intended to fill up the vacancy or not  and thereupon  notify what members were going to constitute  the Tribunal.  We are led to that conclusion because a  Tribunal of  three consisting of Mr. Sen, Mr. Mazumdar and Mr.  Chan- drasekhara Aiyar is a different tribunal from one consisting of two, viz., of Mr. Sen and Mr. Mazumdar only.     In  this setting, it is next necessary to  consider  the words  of  section 8 on which strong reliance is  placed  on behalf  of the respondents.  The marginal note of that  sec- tion is "filling of vacancies ".  The section deals with the Board,  the  Court and the Tribunal in its  clauses.   Under sub-section  (1), the Legislature clearly contemplates  that when  the services of a member cease to be available at  any time  there  will arise a vacancy.  This  sub-section  deals with the situation in three stages.  The first question  is, have  the services of a member (and this includes,  for  the present discussion,. a chairman)ceased to be available ?  If so,  the vacancy having thus arisen, the next  question  is, what  can  be done by the appropriate Government  ?  If  the vacancy  is filled up by making the appointment,  the  final question  is,  how the proceedings shall go  on  before  the Board, Court or Tribunal so reconstituted ? It was argued on behalf  of the respondents that it was for  the  appropriate Government  alone  to pronounce whether the  services  of  a member  had ceased to be available at any time and that  was not a matter for the decision of the Court.  In our opinion, what is left to the option of the Government is, in case  of the services of a member ceasing to be available, to appoint or  not to appoint.  Those stages having passed, the  appro- priate Government, under the section, is obliged to  appoint another person to fill the vacancy, if the vacancy is creat- ed in respect of a chairman. In respect of the vacancy of  a member’s post, the Government is given the option to appoint or  not to appoint another person.  The concluding words  of the  sub-section "so reconstituted" clearly relate  only  to the contingency of 392 the Government making the appointment of another independent person  in  the vacancy.  The concluding part of  that  sub- section  provides  for the continuance  of  the  proceedings before  the body so reconstituted. Subsection (2) also  pro- vides  that where a court or tribunal consists only  of  one person and his services have ceased to be available, on  the appointment  of another independent person  the  proceedings shall  be  continued before the person so appointed  and  it will  not  be necessary to start the  proceedings  from  the beginning  before that person.  Section 8 (3)  provides  for the  contingency of the services of a member of a Board  not being available.  It requires the appropriate Government  to make  the appointment as provided in section 5 (3) and  fur- ther provides that notwithstanding the inclusion of a total- ly new man in that vacancy, the proceedings shall be contin- ued  before the Board so reconstituted.  Reading  the  three clauses   together,  therefore, it is quite clear  that  the object  of section 8 is to make specific provisions  in  re- spect of situations when the Government must or does fill up vacancies in the event of the services of a member or chair- man  not being available and the consequences of  a  totally new man filling up the vacancy.  As we read the Act, that is

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the total object and intention of this section.  It does not contemplate the consequences of the Government not making an appointment  where  it  has the option not to  do  so.   The emphasis on the words "so reconstituted’’  in   sub-sections (1)  and  (3)  and the concluding words  of  each  of  those clauses clearly bear out this intention of the legislature.     It  was  argued that although no provision  is  made  in section 8 (1) about what is to happen if the Government  did not  fill up the vacancy, it is implied that in  that  event the  remaining members can continue the work. We are  unable to accept that argument. In the first place, as pointed  out above,  the object of section 8 is to provide in what  cases vacancies  must be filled up and how the proceedings  should continue  on the vacancy being filled up.  It does not  deal at all with the situation arising from the not filling up of the 393 vacancy  by the Government.  In this connection  the  provi- sions  of sections 5 (4) and 6 (a) have been already  noted. When the legislature wanted to provide that in spite of  the temporary absence or permanent vacancy the remaining members should be authorised to proceed with the work they have made express provision to that effect.  If in the case of a Board or  Court of Inquiry, neither of which is  adjudicating  any disputes,  such  a  provision was  considered  necessary  to enable the remaining members to act as a body, we think that the  absence of such provision in respect of  the  Tribunal, which  adjudicates on the disputes and whose  quasi-judicial work  is admittedly of a joint character and  responsibility leads to the irresistible conclusion that in the absence  of one  or more members the rest are not competent to act as  a Tribunal at all. Again the provisos to sections 5 (4) and  6 (3) are important.  Under those provisos when the Government intimates to the remaining members that the services of  one "have ceased to be available" the rest have no right to  act as  the Board or Court.  It appears under the  circumstances proper to hold that in respect of a Tribunal when the  serv- ices  of a member have ceased to be available, the  rest  by themselves have no right to act as the Tribunal.     The question which we have got to consider can be divid- ed in two stages.  On the appointment of Mr.  Chandrasekhara Aiyar as a member of the Boundary Tribunal, did his services cease  to be available within the meaning of section 8,  and thereby  was a vacancy created? The parties have put  before us only two telegrams exchanged between the chairman and Mr. Mazumdar  on the one hand and the Central Government on  the other,  to reach our conclusion about the situation  arising from Mr. Chandrasekhara Aiyar joining the Boundary Tribunal. Certain Government notifications published ’in May and June, 1950, i.e., over three or four months after Mr.  Chandrasek- hara Aiyar finished his work on the Boundary Tribunal,  have been put before us, but in our opinion these 394 ex  post facto notifications cannot help us in deciding  the important  question under section 8. It is obvious that,  on the  date the appointment of Mr. Chandrasekhara Aiyar  as  a member of the Boundary Tribunal was made, it could not  have been known how long that Tribunal would take to complete its work.   In any event, the evidence put before us as of  that date  does  not show that the appointment was  for  a  short time.  The  Boundary Tribunal’s work may have lasted  for  a month  or  a  year.  Having regard to the  urgency  and  the necessity  of quick disposal of industrial  disputes  recog- nised  in section 15, the deputation of a member of  such  a Tribunal to another Tribunal, whose work may be of an indef-

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inite  duration, obviously makes the services of the  member cease to be available to the Industrial Tribunal within  the meaning  of  section 8 so as to bring about a  vacancy.  The later statement in the Government notification of May, 1950, that  Mr. Chandrasekhara Aiyar’s services were lent  to  the External Affairs Ministry "from the 23rd of November,  1949, to the 20th of February, 1950,  " appears to be more a noti- fication  for the purpose of the Accountant-General and  the Audit departments of the Government than a disclosure of the mind of the Government when the appointment was made on  the 23rd of November. When Mr. Sen, as chairman, and Mr.  Mazum- dar held their first sitting in the absence of Mr.  Chandra- sekhara  Aiyar, an objection was raised about the  constitu- tion  of the Tribunal.  Thereupon Mr. Sen and  Mr.  Mazumdar conveyed to the Government what had happened at the meeting. The Government was therefore clearly faced with the  problem as  to  what it wanted to do. The reply  telegram  from  the Government asked Mr. Sen and Mr. Mazumdar to go on with  the proceedings.   It further stated that the  Government  might fill  up the vacancy later on.  The question for  considera- tion is, what is the effect of this telegram of the  Govern- ment  ?  In the light of the provisions of  section  8  that telegram  can only mean that the Government had decided  not to fill up the vacancy.  If a vacancy had occurred they  had to make the appointment or state that they will 395 not do so.  They cannot defer their decision on the question of  filling  up the vacancy and in the interval  direct  the remaining  members to go on with the reference.  That  seems to  us  to be the correct position because  the  fundamental basis  on which the Tribunal has to do its work is that  all members  must sit and take part in its proceedings  jointly. If  a  member was casually or temporarily  absent  owing  to illness,  the  remaining members cannot have  the  power  to proceed  with  the reference in the name  of  the  Tribunal, having regard to the absence of any provision like section 5 (4) or 6 (3) in respect of the tribunal.  The Government had notified   the   constitution of this Tribunal by  the   two notifications   summarized in the earlier part of the  judg- ment and thereby had constituted the Tribunal to consist  of three  members and those three were Mr. Sen,  Chairman,  Mr. Mazumdar  and Mr. Chandrasekhara  Aiyar.    Proceeding  with the adjudication in the absence of one, undermines the basic principle of the joint work and responsibility of the Tribu- nal  and of all its members to make the award. Moreover,  in their  telegram  the Government had not  suggested  that  no vacancy had occurred. Indeed, they recognised the fact of  a vacancy having occurred but stated that they might make  the appointment later on. If those words are properly construed, without  any  outside considerations, it is clear  that  the Government  intended that the remaining two members  of  the Tribunal should proceed with the adjudication as a Tribunal. This  direction  in fact was accepted and  the  two  members proceeded with the reference and made certain awards.  Those awards were sent to the Government under section 15 (2)  and the Government by its order declared the awards to be  bind- ing,  and  published them in the  official  Gazette.   Those awards are signed only by Mr. Sen and Mr. Mazumdar.  Reading those  awards with the notifications and the  provisions  of sections  15 and 16 it is therefore clear that between  23rd November,  1949,  and 20th February,  1950,  the  Government ’’intended" the tribunal to consist only of Mr. Sen and  Mr. Mazumdar. It was not and 396 cannot  be seriously disputed that in the event of the  Gov-

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ernment deciding to fill up the vacancy, a notification  had to  be  issued. The question is, why and under what  rule  ? The answer clearly is that they had to do it because of rule 5.  The reason why intimation of a new man forming a  member of  the Tribunal has to be publicly given, in  our  opinion, applies  with equal force when a tribunal initially  consti- tuted of three persons, viz., Mr. Sen, Mr. Mazumdar and  Mr. Chandrasekhara  Aiyar,  is, by the Government  decision,  as from  a  certain date, to be a tribunal of Mr. Sen  and  Mr. Mazumdar only. The word "reconstituted" is properly used  in section  8  because when a new member is introduced  in  the panel so far performing its duties, it is a  reconstitution, but the words of section 8 do not exclude the obligation  on the  Government  to issue a notification under rule  5  when there is not a reconstitution, but a new constitution of the Tribunal.  The Government, however, did not give  effect  to its intention by issuing a fresh notification under  section 7.  Therefore, when the services of Mr. Chandrasekhara Aiyar ceased  to be available and they decided that another  inde- pendent person was not to be appointed to fill the  vacancy, there arose the situation when only two members  constituted the  Tribunal and for the constitution of such  Tribunal  no notification  under  section  7 of the Act  was  issued.  To enable such a Tribunal of two persons to function, under the provisions of the Act, a notification under section 7 of the Act,  in our opinion, was absolutely essential. The work  of the two members in the absence of such a notification cannot be  treated as the work of a Tribunal established under  the Act and all their actions are without jurisdiction.      It  was argued on behalf of the respondents  that  when Mr.  Chandrasekhara  Aiyar left for the  Boundary  Tribunal, there arose a temporary absence which it w, as not necessary to  fill up and the remaining two members  had  jurisdiction under  the  Act  to proceed with the  adjudication.  In  our opinion,  this contention cannot be accepted. In  the  first place,  in the agreed statement of facts, it is  not  stated that there was any temporary 397 absence. Again, as we have pointed out the Government by its telegram of the 29th of November accepted the position  that a vacancy had occurred and no question of temporary  absence therefore arises for our consideration. An analogy sought to be drawn between the temporary absence on leave or on  depu- tation  of a Judge is misleading having regard to  the  fact that  under  section 7 the Government has to decide  at  the initial  stage how many members and who will constitute  the Tribunal and have to notify the same.  That step having been taken,  it  is  not within the power or  competence  of  the Government to direct a few members only of such Tribunal  to proceed with the adjudication for however short or long time it be.  In our opinion, section 8 has no application to that situation.   In this connection, it may be useful to  notice that  under  rule 12 it was provided that "when  a  Tribunal consists of two or more members, the tribunal may, with  the consent  of  the  parties, act  notwithstanding  any  casual vacancy in its number  ......  "This rule clearly shows that even  when  there  was a casual vacancy  and  the  remaining members  desired to proceed with the work they could  do  so only with the consent of the parties. This rule framed under section 38 of the Act strongly supports the contention  that if  the  Act  impliedly gave power under section  8  to  the remaining  two members of the Tribunal to act, as  contended on behalf of the respondents, there was no necessity at  all for making this rule. Although this rule was repealed on the 3rd  of December, it was in operation when the  services  of

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Mr.  Chandrasekhara  Aiyar  ceased to be  available  to  the Tribunal  as  from the 23rd of November. If in the  case  of temporary absence, the consent of the parties was  essential to enable the remaining members to act, it certainly follows that  the  objection to their working as  a  ’tribunal  when there  is no consent and the absence is not casual,  but  is due  to the services of one of the members having ceased  to be  available,  is  fatal.  It follows  therefore  that  all awards made by Mr. Sen and Mr. Mazumdar, after the  services of Mr. Chandrasekhara Aiyar ceased to be available, were 398 not made by a tribunal duly constituted under section 7  and those awards are therefore void.      It  was contended that by directing Mr.  Chandrasekhara Aiyar  to  work again as a member of the Banks  Tribunal  in February,  1950,  the Government had filled up  the  vacancy under  section  8. In our opinion this  position  cannot  be supported on the admitted facts. As regards filling up of  a vacancy  under  section 8, we have already noticed  that  by directing the remaining two members to proceed with the work and by notifying their awards as the awards of the  Tribunal the  Government must be considered to have intended  not  to fill  up the vacancy.  Again, the  later  notification  pub- lished in June, 1950, does not even state that Mr.  Chandra- sekhara Aiyar was appointed a member of the Tribunal "in any vacancy." The word used there is "resumed" suggesting there- by  that he had gone out for the time being but had  started the  work again. Under the circumstances and in the  absence of any other evidence, we are unable to consider the fact of Mr. Chandrasekhara Aiyar sitting along with the two  members from and after the 20th February, 1950, as an appointment by the Government in the vacancy created by his appointment  to the Boundary Tribunal in November, 1949.    At  one  stage it was suggested that the members  of  the Tribunal could delegate their work to a few members only and the  award  can  be supported in that way.  Apart  from  the question what work could be so delegated, it was ascertained that  the Rule permitting delegation was first published  on 3rd December, 1949, and as Mr. Chandrasekhara Aiyar had gone to  his work on the Boundary Tribunal on 23rd  November,  no delegation in that manner was possible. Moreover, the state- ment  of facts nor the award of the three  persons  suggests that there was any delegation of work by the Tribunal in the matter of the general issues to some members only.  Nor  was any  report  made to or considered by the full  Tribunal  as required by the rule.      The next question to be considered is the effect of Mr. Chandrasekhara Aiyar sitting with the two 399 members  of  the  Tribunal after 20th  February,  1950.  The record  shows  that the two members considered most  of  the general issues raised in respect of the banks at many  meet- ings. The nature and volume of the work done by them  during this interval has been summarized in the earlier part of the judgment.  It  is not contended that on  Mr.  Chandrasekhara Aiyar commencing to sit again with the other two members  on and from the 20th February what had happened in his  absence was  re-done  or re-heard.  Mr. Chandrasekhara  Aiyar  along with the other two members continued to work from the  point work had proceeded up to 19th February, 1950, and the  award which  is put before us is signed by all the three of  them, i.e., on the footing that all the three of them were members of  the Tribunal.  It was suggested that Mr.  Chandrasekhara Aiyar  should  be treated as having  remained  throughout  a member  of  the Tribunal of three and that he  resumed  work

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after a temporary absence between November, 1949, and Febru- ary, 1950. In our opinion, this position is quite unsupport- able.  When the services of Mr. Chandrasekhara Aiyar  ceased to  be available to the Tribunal in November, 1949, and  the Government  accepted  the position that a  vacancy  had  oc- curred,  Mr. Chandrasekhara Aiyar ceased to be a  member  of the  Tribunal of three as constituted under  the  Government notification  of June, 1949. Thereafter  Mr.  Chandrasekhara Aiyar never became a member of the Tribunal as he was  never appointed a member before he signed the award. No  notifica- tion  making such an appointment under section 7 read’  with section  8 of the Act has been even suggested to exist.   In the circumstances, the position in law was that Mr. Chandra- sekhara Aiyar ceased to be a member of the Tribunal of three as  originally constituted, that no new Tribunal of two  was legally  constituted and that, having ceased to be a  member of the tribunal of three, Mr. Chandrasekhara Aiyar could not resume duties as a member of the Tribunal of three without a fresh  constitution of a Tribunal of three.  The  result  is that all the interim awards purported to be made by Mr.  Sen and Mr. Mazurndar as 400 well as the final awards made by the three must all be  held to have been made without jurisdiction. It seems to us  that the only way in which the Government could have put  matters right  was by a notification issued in February, 1950,  con- stituting the tribunal as a fresh Tribunal of three  members (and not by proceeding as if a vacancy had been filled up on 20th February, 1980, under section 8) and the three  members proceeding  with the adjudication de novo. Even if the  con- tention  of  the respondents that Mr.  Chandrasekhara  Aiyar continued throughout a member of the tribunal were accepted, in  our opinion, the appellants’ objection to the  jurisdic- tion of the three persons to sign the award must be  upheld. Section  16  which authorizes them to sign  is  preceded  by section  15.  Unless they have complied with the  provisions of  section  15, i.e., unless all the three have  heard  the matter together, they have no jurisdiction to make the award in terms of section 18 and have therefore also no  jurisdic- tion to sign the award under section 16.  In any view of the matter the awards are therefore without jurisdiction.     It  was suggested that-his signature on the award  could be  treated as surplus.  In our opinion, this  argument  re- quires  only  to be stated to be rejected.  It  is  not  and cannot be disputed that Mr. Chandrasekhara Aiyar took active part in the deliberations and in the proceedings after  20th February,  1950, and naturally discussed and influenced  the decision  of the other two members of the Tribunal  by  such discussions.  This is not a case where an outsider was  con- sulted  by  the  members of a Tribunal  and  thereafter  the members  came  to  their own independent  decision.   It  is obvious  that  for making the award all  the  three  persons worked together and were jointly responsible for the result- ant award.  The argument of surplusage therefore must  fail. In  this view of the matter, the final award put before  the Court  is clearly without jurisdiction and  the  appellants’ contention must be upheld.     The  final contention that the sittings in the  interval constituted only an irregularity in the proceedings 401 cannot  again  be accepted because, in the first  place,  an objection was raised about the sitting of the two members as the  Tribunal. That objection, whether it was raised by  the appellants or the other party, is immaterial. The  objection having been overruled, no question of acquiescence or estop-

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pel arises,  Nor can consent give a court jurisdiction if  a condition which goes to the root of the jurisdiction has not been performed or fulfilled. No acquiescence or consent  can give a jurisdiction to a court of limited jurisdiction which it  does  not  possess. In our opinion,  the  position  here clearly is that the responsibility to work and decide  being the  joint responsibility of all the three members, if  pro- ceedings  are conducted and discussions on  several  general issues  took place in the presence of only two, followed  by an award made by three, the question goes to the root of the jurisdiction of the Tribunal and is not a matter of  irregu- larity in the conduct of those proceedings. The absence of a condition  necessary to found the jurisdiction to  make  the award  or give a decision deprives the award or decision  of any  conclusive effect.  The distinction clearly is  between the  jurisdiction  to decide matters and the  ambit  of  the matters  to  be heard by a Tribunal having  jurisdiction  to deal  with  the same. In the second case,  the  question  of acquiescence  or  irregularity may be considered  and  over- looked. When however the question is of the jurisdiction  of the  Tribunal  to  make the award  under  the  circumstances summarized  above,  no question of acquiescence  or  consent can affect the decision.     It was contended that under section 8 the contingency of the  Government not filling up a vacancy is clearly  visual- ized.  It is also provided in the section that in the  event of  a vacancy the Government may fill it up by appointing  a new  man and in such a case the proceedings need  not  start afresh.  It was argued that nothing more had happened in the present case and therefore no question of invalidity of  the awards  arises. We are unable to accept  these  contentions. In the first place, when Government decides not to fill up 402 a  vacancy  its decision has to be notified.  It  is  not  a matter of the Government’s internal administration where the officers  can  work under departmental orders.  Moreover  it should  be noticed that when the services of a member  cease to be available and that fact is conveyed to the rest of the members  under  sections 5 (4) and 6 (3), the rest  have  no right  to act as a Body at all. The wording of section 7  or 8, in our opinion, does not permit the remaining members  of a Tribunal to have a higher right in the absence of a proper new  notification  issued under section ? of  the  Act.   As regards the second Contention, it should be noticed that the Government is given the option to make an appointment when a vacancy occurs, and section 8 provides that if a new man  is appointed  in the vacancy the proceedings need not start  de novo.  That however does not mean that the  Government  must appoint  a man in every case of vacancy and the  proceedings must  go on without commencing the same afresh.  It  appears that  the option is left to Government having regard to  the stage  to which the proceedings may have  reached.   Suppose only after some preliminary work of a data finding nature is done  a  vacancy occurs, the Government may  well  think  of appointing  a new man as it may not be considered  necessary to start the proceedings afresh.  On the other hand, if  the work  has  progressed considerably the Government  may   not think  it  just and proper to fill up a vacancy by  bringing in  a new man, as by doing so they  will in   effect  permit the  work  of  the Body being done in two parts,  viz.,  the first  with  two men and the second with  three  men.  These considerations  emphasize the importance of  the  Government making  up its mind to fill up or not to fill up  a  vacancy when it occurs.  It cannot keep its decision in abeyance and at  one  stage intend to proceed on the,  footing  that  the

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vacancy  is  not filled up and later on  after  considerable work  is done by the remaining members change its  mind  and proceed  to act on the footing that a vacancy has  continued and fill up the same after some months. 403     On the admitted principle that the work of the Tribunal, which is of a quasi-judicial nature, is one of joint respon- sibility of all its members, section 8 provides  exceptions. The Legislature having thus fixed in that section the limits of  the exceptions, the limits have to be strictly  observed and it is not within the  competence either of the  Tribunal or the Government to extend the limits of those  exceptions. In our opinion, the incidents in respect of the sittings and work  of this Banking Tribunal, as mentioned above,  do  not fall  within the limits of the exceptions and therefore  the awards must be considered as made without jurisdiction.      In our opinion, therefore, the awards made and signed by Messrs.  Sen and Mazumdar and by all the three  persons  are without jurisdiction and the contention of the appellants on this issue must be accepted. FAZL  ALI J.--The questions which this Bench is called  upon to decide arise upon the following facts.     By a Notification dated the 13th June, 1949, the Govern- ment of India constituted a Tribunal for the adjudication of industrial disputes in Banking Companies, consisting of  Mr. K.C.  Sen (Chairman), Mr. S.P. Varma and Mr. Majumdar  (Mem- bers).  Subsequently, Mr. Chandrasekhara Aiyar was appointed a  member of the Tribunal in the place of Mr.  Varma,  whose services had ceased to be available. On the 13th June, 1949, the Government referred to the Tribunal the disputes between a  number of Banking Companies and their employees, and  the Tribunal consisting of the chairman and 2 members  commenced hearing them on the 12th September, 1949. In November, 1949, the services of Mr. Aiyar were placed at the disposal of the Department  of External Affairs of the Government of  India, and he was appointed a member of the Indo-Pakistan  Boundary Disputes  Tribunal, with the result that during his  absence which  covered’ a period of nearly 3 months  beginning  from the 23rd 404 November,  1949, and ending on the 20th February, 1950,  the proceedings  were  continued  before the  chairman  and  the remaining member, and certain interim awards were also  made during this period.  Mr. Aiyar rejoined the Tribunal on  the 20th  February, 1950, and ultimately all the 3 members  made and  signed an award on the 31st July, 1950, which was  pub- lished  in  the Gazette of India on the 12th  August,  1950. The main point raised in these appeals is that this award is without  jurisdiction.  In some of the appeals, it  is  also contended  that  some of the interim  awards,  namely  those given  by the chairman of the Tribunal and Mr.  Majumdar  on the 5th January, 25th January, 20th February and 22nd Febru- ary,  1950, in the case of the Imperial Bank of  India,  the Lloyds Bank and the Punjab National Bank, were also  without jurisdiction.  Briefly, the argument advanced on  behalf  of the  appellants is that the Industrial Disputes  Act,  1947, did  not  permit either of the following  courses,  firstly, that  2 members of the Tribunal, which originally  consisted of  3  members, should deal with any  of  the  controversies between the parties in connection with the disputes referred to  the Tribunal, and secondly, that a member who  had  left the  Tribunal in the midst of the hearing should rejoin  and influence the decision of the other members in regard to the matters which he had not heard.      These contentions, however plausible they may appear at

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the  first  sight, especially when we consider them  in  the light of our notions of judicial procedure to be followed in courts  of law, will, in my opinion, be found to be  without much  substance, on close examination, once we realize  that the Industrial Tribunal, though it has all the trappings  of a  court of law, is not such a court and has to  follow  its own  procedure which has to be determined by the  provisions of  the industrial Disputes Act and the rules framed by  the Government  thereunder.  The determination of the  questions raised  before  us will depend mainly upon the  proper  con- struction of section 8 (1)of the Act, which runs as  follows :-- 405     "8 (1) If the services of the chairman of a Board or  of the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government  shall, in the case of a chairman, and may in the case of any  other member,  appoint  another  independent person  to  fill  the vacancy,  and the proceedings shall be continued before  the Board, Court or Tribunal so reconstituted ."    One  of  the questions to be decided in  construing  this section  is, as to the exact meaning of the words  "services cease  to be available."  Ordinarily, the word "cease"  con- veys  a  sense of permanency, and therefore  the  expression would  certainly cover cases where the services of a  person have ceased to be available permanently or for all time. But that  word is also sometimes applied to "intermission  of  a state or condition of being, doing or suffering" (see Oxford Dictionary), and, among several instances of its being  used in  this  narrower sense, we were referred to The  Queen  v. Evans(1) which is a case dealing with an English statute  in which  the  expression "cease to reside" was used so  as  to include  a  case where the person concerned  was  away  from England for a period and then returned there. It seems to me that  the  words "services cease to  be  available"  include cases where the services are not available for a defined  or undefined period, provided that during that period they  are completely  unavailable.   These words should, I  think,  be read  with the marginal note of section 8,  which  indicates that they were intended to cover every situation necessitat- ing  the filling of a vacancy.  As we are aware,  a  vacancy may  be   permanent  or  temporary,  and  therefore  if  the services of a member of a Tribunal are temporarily placed at the  disposal of  another department of the  Government  for performing special work, such a case will be covered by  the section.  This must necessarily be so, if the nature of  the duties which the member is called upon to discharge is  such as  to necessitate that particular member  severing  himself completely from the Tribunal  during the (1) [1896] 1 Q.B. 228. 406 period  in which he holds his new office.  I find it  diffi- cult  to hold that the section was meant to apply only to  a permanent vacancy, and that no-provision whatsoever was made for  a temporary vacancy, which is by no means a  matter  of uncommon occurrence.  It should be noted that in sections  5 and  6 of the Act, the Legislature has been careful  to  use the  words  "vacancy  in number" which are  wide  enough  to include cases where, though there is a vacancy, the  member- ship does not cease.      It  is  common  ground that in the  present  case,  the services  of Mr. Aiyar were not available to  the  Tribunal, while  he  was  employed as a member  of  the  Indo-Pakistan Boundary Disputes Tribunal.  It is also not disputed that at the time his services were transferred, it was not known for

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what period his new duties would keep him away from the work of the Industrial Tribunal.  There can be no doubt therefore that there was a vacancy, which provided an occasion for the Government  to  exercise the discretion vested in  it  under section 8 of the Act.      At  this  stage it will be relevant  to  quote  certain correspondence  which  passed between the  chairman  of  the Tribunal  and the Government soon after Mr. Aiyar’ left  the Tribunal.   We  find that on the 28th  November,  1949,  the chairman  sent  an express telegram to the  Labour  Ministry stating that in the absence of Mr. Aiyar objections had been raised to the remaining two members of the Tribunal continu- ing  the proceedings and urging the Ministry either  to  ap- point  a substitute or to intimate that the  Tribunal  could proceed  with  two members during Mr.  Aiyar’s  absence.  To this, the Government sent the following reply:-      "Reference  your telegram  twenty eighth  stop  Govern- ment  advised that rule twelve is inconsistent with  section eight  stop rule twelve being  deleted through  notification stop  Government advised Tribunal can  continue  proceedings with remaining two members stop no formal order or notifica- tion necessary stop Government may fill vacancy later date." 407     These  two telegrams indicate that both the chairman  of the  Tribunal and the Government took the view that  in  the circumstances  of the case, there was a vacancy  within  the terms  of section 8, that under that section it was open  to the  Government  either to make an appointment to  fill  the vacancy or not to make an appointment, and that the proceed- ings before the Tribunal could continue even if the  vacancy was  not  filled. This is quite clear  from  the  concluding words (which I have underlined) of the telegram sent by  the Government to the chairman of the Tribunal.  In my judgment, the  view  taken  by the chairman of the  Tribunal  and  the Government  was perfectly correct.   The  question  involved here is twofold, namely, (1) whether section 8 applies to  a temporary  vacancy; and (2) whether, in case the  Government decides  not  to fill such a vacancy,  the  proceedings  can continue  before  the chairman and the remaining  member.  I have  already  dealt with the first point,  and  the  second point may also be now dealt with briefly. In substance, what section  8  provides is that if the chairman goes  out,  the vacancy  must  be  filled, but, if a member  goes  out,  the Government may or may not fill the vacancy.  It seems to  me to follow from this by necessary implication, that if  there is a member’s vacancy and the Government decide not to  fill it, the Tribunal will not become an imperfectly  constituted Tribunal.  In other words, the proceedings can be  continued before  the Tribunal in spite of the vacancy.  The  argument put  forward before us on behalf on the appellants was  that in  the event of a member’s vacancy, either  the  Government should make an appointment at once or the work of the-Tribu- nal  should  be  suspended until an   appointment  is  made. These   inferences however  do not appear to me to  be  war- ranted by the words of the section, firstly because ’if  the section  says that the Government may or may not  appoint  a new member, how can we say that the Government must  appoint him, and secondly because there is nothing in the section to show  that the work of the Tribunal should remain  suspended indefinitely in the situation with 408 which we have to deal. A reference to the corresponding Acts in England and America will show that suspension of work  is generally  ruled out in cases of industrial  disputes  since they need expeditious settlement.  (See section 3 (b) of the

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National  Labour Relations Act of America and section  3  of the Industrial Courts Act, 1919, of England). The scheme  of our  Industrial Disputes Act appears to me to be  the  same, and I think that it will be entirely foreign to that  scheme to  suggest  that  the proceedings of  the  Tribunal  should remain  suspended indefinitely. The principle that the  pro- ceedings  may continue in spite of there being a vacancy  in number,  is expressly laid down in sections 5 and 6  of  the Act  which govern Boards of Conciliation and Courts  of  En- quiry, and is in my opinion recognized by necessary implica- tion  in section 8 with reference to proceedings  before  an Industrial  Tribunal.  It was strenuously argued  before  us that  if the intention of the Legislature had been that  the proceedings before the Tribunal should continue in spite  of a  vacancy,  an express provision would have  been  made  in section 8 in the same terms as it has been made in  sections 5 and 6. This argument however will not bear close  examina- tion.  Sections 5 and 6 have been reproduced from the  Trade Disputes  Act, 1929, without any verbal  change  whatsoever, and it is quite understandable that a provision dealing with the  subject of a prescribed quorum should  expressly  state what would be the effect of the absence of the chairman or a member when the quorum is complete. Section 8, on the  other hand,  has  not  been borrowed from the old Act,  but  is  a completely  new section in which its draftsman has used  his own  language  and proceeded on the footing that if  it  was possible  to convey the meaning intended to be  conveyed  in fewer  words,  there was no necessity  for  reproducing  the entire phraseology used in sections 5 and 6. Besides, in the context in which the provision occurs, there is no room  for surmising  that the intention of the framer of  the  section might  have  been to suspend the work of the  Tribunal.  The words "the proceedings shall be continued 409 before  the  Board,  Court or  Tribunal  so  reconstituted", obviously refer to a situation which arises when anew chair- man  or a new member is appointed, but they also  show  that the  framer of the section  must have assumed that the  pro- ceedings before the Tribunal shall continue when there is  a vacancy  in number  and the Government decides not  to  fill it.     The position we have now arrived at is this. There was a vacancy of an indefinite duration and the Government  decid- ed, as it was competent for it to decide, not to fill it for the time being but to let the Tribunal continue the work. In my  judgment, in such circumstances, the proceedings  before the chairman and the remaining member cannot be said to have been without jurisdiction.     The further question which now arises is, "what would be the legal effect of Mr. Aiyar rejoining the Tribunal on  the 20th  February,  1950?"  It is contended on  behalf  of  the appellants  that  the whole award is vitiated by  Mr.  Aiyar being  brought  into the Tribunal at a late stage,  and  the argument  is put in the following way." The  Government  had originally  appointed  a Tribunal consisting of  a  members. Granting  that a Tribunal of a members can, under section  8 of the Act, become a Tribunal of 2, how can it again  become a  Tribunal  of 3, without the Government acting  in  strict compliance  with the procedure laid down in the section  and without  making a fresh appointment." The same argument  was put  a little more rhetorically by likening the  proceedings before the Tribunal to a running train and enquiring whether it  was permissible for one to "jump into and jump off"  the train  as one chose. I must confess that though I have  very carefully  considered this argument I have not been able  to

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appreciate its force. In answering the argument, we have  to bear  in mind that the Legislature has conferred very  large powers on the Government, and the entire constitution of the Tribunal as well as the appointment of its members have been left  to  its discretion.  Section 7 (2) provides  that  the Tribunal shall consist of such 410 number of members as the appropriate Government thinks  fit. Again, section 8 (1) provides that the Government may or may not appoint a member to fill a vacancy. Under section 9,  no order of the appropriate Government appointing any person as a  member of a Tribunal shall be called in question  in  any manner.  Under section 38, for the purpose of giving  effect to the provisions of the Act, the Government may make rules, and,  as far as I can see, there is nothing to  prevent  the Government from making a rule fixing the minimum strength of the Tribunal for hearing any of the matters before it. Thus, in a way, the Government is empowered to constitute as  well as reconstitute the Tribunal, and though it is not  expected to  use  the  power arbitrarily, or unfairly  the  power  is there. Therefore looking at the substance of the matter,  as opposed  to  mere technicalities and legal  refinements,  it appears  to  me to be a sufficient answer  to  the  question posed on behalf of the appellants to say that, if the  going out  and coming in of Mr. Aiyar was under the orders of  the Government, the proceedings cannot be held to be invalid.     Apart from this general answer, I shall now try to  deal with  the question a little more closely. As I have  already pointed  out, under section 8, the Government  is  empowered not to fill a member’s vacancy at all. Now, there appear  to me  at least two obvious reasons, which may induce the  Gov- ernment  not  to fill the vacancy, namely,  (1)  because  it considers  that  the chairman and the  remaining  member  or members are sufficient to carry on the work of the Tribunal, and  (2) because the vacancy being a temporary one, it  con- siders it unnecessary to introduce a new member and  prefers to  await the return of the old member. It seems to me  that it  was the latter alternative that commended itself to  the Government in the present case. Here,  the vacancy being   a temporary  one, Mr. Aiyar had not ceased to be a  member  of the  Tribunal, and could therefore rejoin it as soon  as  he was  free  from the duties of his new office.   In  such  an event, it was not necessary for the Government to 411 make  any  order reappointing him to the  Tribunal.  He  was still  a  member of the Tribunal and resumed his  duties  as such under the orders of the Government. It will, therefore, be entirely wrong to describe him as an intermeddler and  to argue that the proceeding was vitiated by his return to  the Tribunal. There is indeed no difficulty in the present  case in  holding  that Mr. Aiyar joined the  Tribunal  under  the orders  of the Government, and we find that  the  Government ultimately  declared the award, to which he was a party,  to be  binding under section 15 of the Act.  He was allowed  to resume  his duties as member of the Tribunal, and  drew  his salary  as  such  from the 20th  February,  1950,  till  the termination  of the proceedings. Such being  the  facts,  it would  be  far  too  abrupt a conclusion to  hold  that  the entire  proceedings are void and the award is bad.   One  of the  arguments which has been advanced before   us   against the  validity of the award is that Mr. Aiyar, though he  did not  participate in the proceedings which took place in  his absence,  was at least theoretically able  to influence  the decision  of the remaining members who had  participated  in them.  But I do not see any basis for this argument in  law,

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unless  we allow our minds to be influenced by  any  precon- ceived  notions of strict judicial procedure followed  in  a regular  court of law. A perusal of section 8 (2) will  show that  the  Act does not contemplate a ale  novo  hearing  in those  cases where a new member is appointed by the  Govern- ment  in the place of a member whose services had ceased  to be  available.  The new member may join at any stage of  the proceedings, and no party will be heard to say that a member who has not taken part in the earlier proceedings is able to influence  the views of those who had participated in  them. How then can such an objection be raised in the case of  Mr. Aiyar,  who was familiar with the proceedings and had  taken part in them in the earlier stages.     When  we  therefore examine the facts closely,  we  find that  in substance nothing has happened in this  case  which could not have legitimately  happened 412 under  section 8 of the Act.  Even if we assume that it  was necessary  for the Government to make an  appointment  under sub-section (1) of section 8, the requirements of the provi- sion  appear to me to have been substantially  fulfilled  in this  case,  because  Mr. Aiyar could not  have  joined  the Tribunal without giving notice to the Government and without obtaining  its orders.  There can be no doubt that the  Gov- ernment  permitted Mr. Aiyar to join the Tribunal, and I  do not find any substantial difference between its directing  a person  to  participate  in the work of  ?the  Tribunal  and appointing him as a member of that Tribunal.       Once therefore it is clearly understood that under the Act,  the Government has been empowered not only to  consti- tute the Tribunal but also to reconstitute it under  certain circumstances,  the problem which is supposed to arise  from the numerical changes in the composition of the Tribunal  in question  should not present any difficulty.  I  think  that the  answer to that problem is to be found within  the  four corners of section 8. If there is a vacancy within the terms of  that  section and the Government does not  fill  it  the Tribunal of 3 members will evidently become a Tribunal of  2 members.  But the power of filling the vacancy being  vested in the Government, the Tribunal may again become a  Tribunal of  a  members, as soon as the vacancy is filled.   I  think that  the  Government can take its own time in  filling  the vacancy  and may allow the work of the Tribunal to go on  in the  meantime. Sometimes, the filling of the vacancy may  be delayed, because a suitable person is not at once available, and it may also be delayed for other conceivable reasons.  I do  not see anything in the Act or in section 8 to  restrict the  powers of the Government in such a manner as to  compel it either to fill the vacancy, at once or to let the vacancy remain  unfilled for ever. To import such a condition  would be placing an undue restriction on the power of the  Govern- ment,   which neither the provisions nor the scheme  of  the Act  justify.  The section, as it stands, will  also  in  my opinion cover 413 a case where the vacancy being a temporary one, the  Govern- ment chooses not to fill it but awaits the return of the old incumbent.     It  was contended that there was no formal  notification made at the proper time to furnish evidence of the  decision arrived at by the Government.  In fact, however, a Notifica- tion was issued by the Government on the 20th May, 1950,  to the following effect:     "After  relinquishing charge of membership of the  Indo- Pakistan  Boundary Dispute  Tribunal, Sri N.  Chandrasekhara

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Aiyar  resumed  charge of his duties as Member  of  the  All India Industrial Tribunal (Bank Disputes) on the 20th Febru- ary 1950 (forenoon)."     It is argued that this ex post facto notification cannot legalize an illegality which had already been committed.   I do  not  however  appreciate this argument.   In  the  first place,  there  was no illegality  committed;  secondly,  the section  does not require any notification; and thirdly,  it is  not correct to say that the Notification was  issued  ex post  facto, as the proceedings had not terminated but  were still  going  on. The Government can take its own  time  for issuing  a  Notification, and I am unable to hold  that  the Government did not act bona fide in making the  Notification to which I have referred. As I have already stated, the fact that  Mr. Aiyar joined the Tribunal with the concurrence  of the Government and the  Government wanted him to continue to participate  in  the work of the Tribunal and paid  him  his salary  on  that basis, is sufficient  compliance  with  the requirements  of the Act. How the absence of a formal  order or  delay in the Notification can have such  a  far-reaching effect on the proceedings before the Tribunal as to make the whole  award void as having been made without  jurisdiction, is a matter which I find considerable difficulty in appreci- ating.   It seems to me that the objections raised on behalf of  the appellants are of the most unsubstantial  character, and in the absence of any cogent if not compelling reason to do  so,  I  cannot pursuade myself to hold  that  the   work which  has  been 414 accomplished by the Tribunal after nearly a year’s delibera- tions and peregrinations all over the country at  considera- ble cost to the public exchequer is so much money and labour thrown away.     In  the course of the arguments, we were asked  to  read section 8 with sections 7 and 16.  I do not find anything in either  of these sections which militates against  the  view which  I have ventured to express, and I do not  think  that the provision contained in section 16 that the report of the Tribunal shall be signed by all the members of the Tribunal, means that it should be signed even by those members who had not taken part in the proceedings.  It really means that the award shall be signed by such members as have taken part  in the proceedings and could have taken part in them under  the Act.  It should be remembered that the provision is  general and  applies to the awards made by the Tribunals as well  as the Boards and Courts, and it should be read with the provi- sions contained in sections 5 and 6 which state that a Board or Court having the prescribed quorum may act  notwithstand- ing the absence of the chairman or any of its members or any vacancy in its number.  It may be that the Tribunal and  the Government  could have acted in this case with more care  so as to avoid the criticisms directed against the  proceedings of the Tribunal, but I find no sufficient ground for holding that the proceedings were without jurisdiction.     Reference  was  made in the course of the  arguments  to rules  Nos. 5 and 12 framed by the Government under  section 38 of the Act, which run as follows :--     "5.   The  appointment  of a Board,  Court  or  Tribunal together  with the names of persons constituting the  Board, Court or Tribunal shall be notified in the official Gazette.     12.   Where a Tribunal consists of two or more  members, the  Tribunal  may,  with the consent of  the  parties,  act notwithstanding any casual vacancy in its number and no act, proceeding or determination of the Tribunal shall be  called in question or invalidated by reason of any such vacancy."

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415     These rules however have in my opinion no bearing on the point  in  dispute.   Rule 5, dealing as it  does  with  the appointment of a Board, Court or Tribunal together with  the names of persons constituting them, refers to a Notification which  the  Government has to make when a  Board,  Court  or Tribunal  is initially constituted under the Act.  This  was done  in  this case, as will appear from the  award  itself. The  rule  has no reference to the appointments  made  under section 8 of the Act to fill vacancies.  I take it that  the Government will, as a matter of practice, issue a  notifica- tion in regard to the appointments made under section 8, but the  notification  will not be under rule 5, and  section  8 itself does not expressly provide for issuing any  notifica- tion.  Nor  is a notification necessary  under  section8  in cases  where the Government decides not to fill  a  vacancy. The  mere fact that the word ’reconstituted’ occurs in  sec- tion 8, is not in my opinion enough to attract rule 5.  Rule 12  which  was in force till the 5th December,  1950,  dealt with  a casual vacancy, and provided that on the  occurrence of such a vacancy, the Tribunal may act with the consent  of the  parties.  This rule had nothing to do with the  vacancy caused by the services of a chairman or a member ceasing  to be  available,  which is dealt with in section  8.   At  the first  sight, it may appear that if the consent  of  parties was necessary in  the case of a casual vacancy for  continu- ing the proceedings, it may also be necessary for continuing the proceedings under section 8 of the Act when no  appoint- ment is made.  In my opinion, however, no such inference can be  drawn  from rule 12. Under that  rule,  the  proceedings could go on without the Government being informed, but as to vacancies  which  occur under section 8, the  matter  passes into  the hands of the Government and its action alone,  one way or the other, legalizes the proceedings, and no question of  consent  of parties arises. On the other hand,  rule  12 lends  support to the respondents’ contentions in two  ways. Firstly,  it shows that a "vacancy" for the purposes of  the proceedings before the Tribunal can be casual and 416 need  not always be a permanent one, as suggested on  behalf of  the  appellants; and secondly, what is  more  important, that  a  "vacancy" does not affect the jurisdiction  of  the remaining  members  to continue the proceedings, for  it  is settled law that consent cannot give jurisdiction in respect of a subject-matter though it might cure a mere  irregulari- ty. It was said that rule 12 was ultra vires, but it appears to me to be unnecessary to inquire into this side issue.     For  the reasons I have set out, I  respectfully  differ from the conclusion arrived at by my Lord the Chief  Justice and the majority of my colleagues, and hold that the  objec- tions  raised  on behalf of the appellants should  be  over- ruled.     PATANJALI  SASTRI  J.--I agree with  the  reasoning  and conclusion  of my learned brother Fazl Ali whose judgment  I have had the advantage of reading.  He has said all I wished to say and has said it so well that I have nothing to add.     MUKHERJEA,  J.--I concur in the decision of  my  learned brother Fazl Ali, J. that the award of the All India  Indus- trial  Tribunal (Bank Disputes) dated the 31st  July,  1950, could not be held to be illegal and inoperative by reason of any  lack  of jurisdiction in the Tribunal  which  made  it. However, as the line of reasoning by which I have reached my conclusion  is  not the same as that adopted by  my  learned brother  and  as I have not been able to agree with  him  as regards  the  validity of certain earlier awards  which  the

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Tribunal  purported  to make in the months  of  January  and February 1950, I deem it necessary and proper to express  my own  views  on the subject matter of  controversy  in  these appeals as succinctly as possible in a separate judgment. The  only  point that has been canvassed before us  at  this stage of the hearing of the appeals relates to the  question of  jurisdiction, and the substantial ground upon which  the legality  of  the awards has been assailed  by  the  learned Counsel appearing for the several 417 Banks is that the awards were not made by a Tribunal proper- ly  constituted and competent to adjudicate upon  industrial disputes under the terms of the Industrial Disputes Act.  To appreciate  the arguments that have been raised by  the  re- spective  parties  on this point, it would be  necessary  to state a few facts.     By  a  notification dated the 13th of  June,  1949,  the Central Government in exercise of the powers conferred  upon it  by section 7 of the Industrial Disputes Act, 1947,  con- stituted an Industrial Tribunal consisting of three  members to wit: (1) Mr. K.C. Sen, (who was appointed chairman of the Tribunal), (2) Mr. S.P. Verma and (3) Mr.J.N. Mazumdar.   By a  further Notification dated August 24, 1949, Mr. N.  Chan- drasekhara  Aiyar was appointed a member of the Tribunal  in place  of Mr. S.P. Verma whose services ceased to be  avail- able  and the Tribunal so reconstituted was designated  "The All India Industrial Tribunal (Bank Disputes) ." The  Tribu- nal consisting of the chairman and the two members mentioned aforesaid  commenced their sittings at Bombay  on  September 12,  1949, and continued to sit as so constituted at  Bombay and various other places since then.  From the afternoon  of 23rd September, 1949, the services of Mr. N.  Chandrasekhara Aiyar were placed temporarily at the disposal of the  Minis- try of External Affairs, he being appointed a member of  the Indo-Pakistan Boundary Tribunal. Mr. Aiyar’s work in connec- tion with the Indo-Pakistan Boundary Tribunal ended on  27th or  January, 1950, and a Government Notification shows  that he  was absent on leave from 28th January, 1950,  until  the 19th  of February following and it is on the 20th  February, 1950, that he actually resumed his duties as a member of the Industrial  Tribunal.  During the entire period of  his  ab- sence there were various sittings of the Industrial Tribunal in which the two remaining members took part and a number of awards  were  also  made and signed by  these  two   members adjudicating  upon several items of dispute concerning  cer- tain  Banks.  It may be mentioned here that in  exercise  of the powers 418 conferred  by  section 38 of the  Industrial  Disputes  Act, certain  rules were framed by the Central  Government  which came  into force on 3rd December, 1949, and under which  the Tribunal,  as constituted by the Notification of 13th  June, 1949,  was authorised to entrust such cases or  matters  re- ferred  to it, as it deemed fit, to one or more members  for enquiry and report.  In case of such entrustment, the report of the enquiring member was to be placed before the chairman of  the  Tribunal  and the Tribunal  after  considering  the report  and making such further enquiry as it deemed  proper could deliver the award.  Purporting to act in pursuance  of these  rules  a large number of matters pending  before  the Tribunal  were divided amongst the members for  enquiry  and report and the members of the Tribunal did sit separately at different places from the 3rd of December, 1949.     After  Mr.  Aiyar joined the Tribunal,  the  proceedings continued  as  before. The hearing of  the  general  issues,

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which began at Bombay, was concluded on 3rd April, 1950. The Tribunal made and signed the main, award on gist July, 1950, which was published in the Gazette of India  (Extraordinary) on August 12, 1950.     The point that has been pressed for our consideration on behalf  of the appellants Banks is that on the  services  of Mr.  Aiyar  having ceased to be available by reason  of  his being  appointed  a  member of  the  Indo-Pakistan  Boundary Tribunal,  the  remaining  two members could  not,  in  law, constitute   an  Industrial  Tribunal  without   its   being reconstituted  as  such in, the manner contemplated  by  the provisions of the Industrial Disputes Act.  The  proceedings after  the 23rd of November, 1949, became,  therefore,  void and inoperative and the subsequent rejoining of the Tribunal by  Mr.  Aiyar  was of no avail, as a  vacancy  having  once occurred,  a fresh appointment of a member and a fresh  con- stitution  of the Tribunal were imperative in law.  We  have been asked to declare the award made on 31st of July,  1950, as well as the earlier awards void and inoperative on  these grounds. 419     These  contentions  have been sought to be  repelled  on behalf  of  the  respondents employees as  well  as  by  the learned  Attorney-General who appeared for the Central  Gov- ernment  as intervener, on a variety of grounds  and  though the  grounds are not quite uniform or consistent, they  have all  been invoked in support of  the position that  even  in the  absence of Mr. Aiyar it was quite competent to the  two other members to continue to function legally as a  Tribunal under the provisions and the general scheme of the Industri- al  Disputes Act, 1947. There was nothing irregular,  it  is said, in Mr. Aiyar’s subsequently taking part in the  Tribu- nal and signing the award on 31st July, 1949. I will  notice these arguments in detail as I proceed with my judgment.     It will be convenient first of all to advert to such  of the provisions of the Industrial Disputes Act, 1947, as have a bearing on the questions raised in this case.     The object of the Industrial Disputes Act, as set out in the  preamble is "to make provisions for  investigation  and settlement  of  industrial disputes and  for  certain  other purposes hereinafter appearing." There are three classes  of authorities  provided  for by the Act’ which  are  entrusted with  the powers and duties of investigation and  settlement of industrial disputes. First of all, there are Conciliation Officers or Boards of Conciliation, whose duties mainly  are to induce the parties to come to a fair and amicable settle- ment  of the disputes amongst themselves.   Secondly,  there are  Courts  of  Enquiry and though they  are  described  as courts, their duties end with investigation into the matters referred  to  them  and submitting reports  thereon  to  the appropriate Government. Lastly, there are Industrial  Tribu- nals  composed of independent persons who either are or  had been  Judges  of the High Court or District Judges,  or  are qualified for appointment as High Court Judges.     Sub-section (2) of section 5 provides for the  constitu- tion  of a Board of Conciliation.  A Board  of  Conciliation shall consist of a chairman and two or four other members as the appropriate Government thinks 420 fit, and sub-section (8) provides that the chairman shall be an  independent person, while the members shall  be  persons appointed  in equal numbers by the parties to  the  dispute. Sub-section (4) makes an important provision, namely, that a Board  can function  despite the absence of the chairman  or any  of the members if it has the prescribed quorum as  laid

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down  in the rules, provided however that if the  Government notifies  the Board that the services of the chairman or  of any  other  member have ceased to be  available,  the  Board shall  not act unless a new chairman or member, as the  case may be, has been appointed.     Section  6 of the Act relates to Courts of  Enquiry  and such  court  may consist of one independent person  or  such number of independent persons as the appropriate  Government may  think fit. Where a Court of Enquiry consists of two  or more  members,  one  of them has got to be  appointed  as  a chairman.  The  Court  like the Board  of  Conciliation  can function  in the absence of the chairman or any of its  mem- bers  or in the case of any vacancy in its number,  provided it has the prescribed quorum; but it cannot function if  the appropriate Government notifies it that the services of  the chairman  have  ceased  to be available, so long  as  a  new chairman is not appointed. There is no provision in  section 6  relating to notification by Government in case the  serv- ices  of a member of a Court cease to be available as  there is  in the case of a member of the Conciliation Board  under section 5.      Section 7 deals with Industrial Tribunals.  Sub-section (1) lays down that the appropriate Government may constitute one  or  more Industrial Tribunals for the  adjudication  of industrial  disputes  in accordance with the  provisions  of this  Act.  Sub-section (2) provides that a  Tribunal  shall consist of such number of members as the appropriate Govern- ment thinks fit. Where the Tribunal consists of two or  more members,  one of them shall be appointed a chairman.   There is no  provision  in  section  7 similar to that   appearing in  sections 5 and 6 empowering a Tribunal to  continue  its proceedings in the absence of the chairman 421 or any of its members, provided there is a requisite quorum; in  fact,  no  quorum has been prescribed in  the  rules  in regard to an Industrial Tribunal at all. It is clear, there- fore,  from  the provisions of section 7 of  the  Industrial Disputes  Act referred to above--and this position  has  not been  disputed by Mr. De who appeared for the  employees  of some of the Barks-- that if a Tribunal has been  constituted as consisting of three members as in the present case,  then subject  to any exception that may be created by  any  other provision  of the Act all the three members of the  Tribunal must act together.     On behalf of the respondents very great stress has  been laid  upon section 8 of the Industrial Disputes Act, and  it is  contended that in the circumstances which have  happened in  the present case, the provision of section 8 would  fur- nish  a  clear  authority to the two  remaining  members  to continue as a legally constituted Tribunal during the period that the services of Mr. Aiyar ceased to be available,  even though  there was neither a fresh appointment in  his  place nor  a fresh constitution of the Tribunal. Section 8  is  in the following terms:--     "(1)   If the services of the chairman of a Board or  of the chairman or other member of a Court or Tribunal cease to be available at any time, the appropriate Government  shall, in the case of a chairman, and may  in the case of any other member,  appoint  another  independent person  to  fill  the vacancy,  and the proceedings shall be continued before  the Board, Court or Tribunal so reconstituted.     (2)  Where  a Court or Tribunal consists of  one  person only and his services cease to be available, the appropriate Government  shall appoint another independent person in  his place,  and  the proceedings shall be continued  before  the

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person so appointed.     (3)   Where the services of any member of a Board  other than the chairman have ceased to be available, the appropri- ate  Government  shall appoint in the  manner  specified  in sub-section (3) of section 5 another 422 person  to  take  his place, and the  proceedings  shall  be continued before the Board so reconstituted."     The  section purports to provide for filling  up  vacan- cies.   Sub-section  (2)  is not material  for  our  present purpose.   Taking sub-sections (1) and (3) together we  find that if the services of the chairman of a Board, a Court  or a  Tribunal cease to be available at any time, it is  incum- bent  upon the appropriate Government in each case  to  fill the vacancy by the appointment of another independent person as  chairman and the proceedings shall be  continued  before the authorities so reconstituted and they would not have  to be  commenced de novo. In case the services of a  member  of either  a Court or a Tribunal cease to be available,  it  is discretionary  with the appropriate Government to  fill  the vacancy or not as it chooses. If it chooses to appoint a new member in place of the old, the same provision will apply as in  the case of appointment of a new chairman.  The  section does  not say, at least in express terms, as to  what  would happen if the Government does not think it proper to appoint a  new  member. So far as a Board of  Conciliation  is  con- cerned, a different provision is made even when the services of  a member cease to be available. In such a  case,  re-ap- pointment  has got to be made as provided for in  subsection (a)  of section 5 and the reasons are obvious;  because  the essential  thing  in a Board of Conciliation  is  the  equal representation  of both parties to the dispute and the  par- ties  would  be unequally represented if the  vacancy  of  a member is not filled up.     In  the present case one of the members of the  Tribunal namely,  Mr. Aiyar,  was admittedly absent for a  period  of above  three months and as he was appointed to do duties  in another capacity,  his services could not possibly be avail- able during the period that he was engaged elsewhere.   This fact, it appears, was brought to the notice of the appropri- ate Government by the other two members, but the  Government decided  not to make any new appointment in his  place.  The question  is, what exactly became the legal position of  the other two members ? Could they function 423 as a Tribunal in the absence of the third member and without the Government reconstituting the Tribunal as a Tribunal  of two ?  The contention of the respondents is that as  section 8  of  the Industrial Disputes Act gives an  option  to  the appropriate  Government  to fill the vacancy or not,  as  it chooses, when the services of a member cease to be available and as it provides for reconstitution only when a new member is appointed by the Government, it is implicit in the provi- sion of the section itself that in case the Government  does not  decide to appoint a new member, the  remaining  members would  automatically   constitute  the  Tribunal  and  would proceed  as such. It is said that the  Industrial  Tribunals are  really administrative bodies and as the very object  of establishing such Tribunals is to settle industrial disputes as  quickly and as expeditiously as possible with a view  to secure  industrial  peace, certain amount of laxity  in  the procedure  cannot but be allowed to these Tribunals  as  ap- pears  from the various provisions of the Act and  it  would defeat the very object of the enactment if the normal  rules of  law  and procedure are made applicable to them.   It  is

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suggested  further that what section 7 (1)  contemplates  is the  constitution of a Tribunal irrespective of its  members for  adjudication  of industrial disputes.  What  number  of persons  the Tribunal shall consist of can be determined  by the  Government at different times and in  different  manner and  no question of fresh constitution of a  Tribunal  would arise in case the number is subsequently altered.     So far as an Industrial Tribunal is concerned, section 8 (1) of the Industrial Disputes Act comes into operation when the  services  of  the chairman of the Tribunal  or  of  any member thereof cease to be available at any time. This  non- availability  of services may be permanent or temporary  and may  be occasioned by any cause or circumstance.   When  the services of a member cease to be available, the  appropriate Government has got to make up its mind whether it would fill the vacancy or not; and in case it chooses to appoint a  new member, the Tribunal must be deemed 424 to  be  reconstituted within the meaning of section  8,  the primary  object of which is to provide that the  proceedings shall  be continued before such reconstituted Tribunal  from the stage at which they were left and they would not have to be  started  afresh.  Thus it follows from the  language  of section 8 that the reconstitution spoken of or  contemplated by  the section is reconstitution by reason of the  appoint- ment  of  a  new member in place of the old.   There  is  no question so far as section 8 is concerned of  reconstitution of the Tribunal when the Government chooses not to fill  the vacancy.     The point that is stressed on behalf of the  respondents is that as section 8 does not provide for reconstitution  of the  Tribunal when no new appointment of a member  is  made, the  implication  must  necessarily be  that  the  remaining members  would continue to act as a Tribunal and no  further order  or notification by the Government is  necessary.  The argument  seems plausible at first sight but an  examination of the material provisions of the Act reveals the  difficul- ties,  and  those of a formidable character, in the  way  of accepting this contention as sound.     As  has  been  pointed out already, there  is  a  marked distinction  between the provisions of sections 5 and  6  of the  Industrial  Disputes Act on the one hand and  those  of section 7 on the other.  Sections 5 and 6 expressly  empower a  Board of Conciliation and a Court of Enquiry to  exercise their  functions in the absence of any of the members,  pro- vided  the prescribed quorum is present; but such  provision has been deliberately omitted from section 7 and nothing has been prescribed either in the Act or in the rules in  regard to any quorum for the members of the Tribunal. It cannot  be argued  that no quorum has been laid down in the case  of  a Tribunal, as it can consist of one member only. The position of  a Court of Enquiry, it seems, is precisely the  same  so far  as  this  point is concerned and yet there  is  a  rule prescribing  a quorum for members of a Court. Having  regard to  the language of section 7 which admittedly  contemplates that the members of 425 a  Tribunal must act all together, it would, in my  opinion, be a perfectly legitimate view to take that if the  legisla- ture did intend to make an exception to this rule, it  would have  done  so in clear terms instead of leaving  it  to  be gathered   inferentially   from  the  provision  of  another section  which itself is not couched ’ in  unambiguous  lan- guage.     An  Industrial Tribunal can be constituted only  in  ac-

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cordance with the provisions of section 7 of the  Industrial Disputes Act and unless a  Tribunal is properly constituted, it  cannot be  invested with jurisdiction to  adjudicate  on industrial disputes. Under sub-section (2) of section 7, the number  of members constituting the Tribunal has got  to  be determined by appropriate Government and that is an integral part  of  the Tribunal itself.  A change in  the  number  of members of a Tribunal could be made therefore only in pursu- ance  of the provision contained in sub-section (2) of  sec- tion  7.  As section 8 does not lay down that  in  case  the services  of a member of the Tribunal cease to be  available and the Government does not choose to make a new appointment in his place, the remaining members should continue to  form the  Tribunal,  the constitution or ’reconstitution  of  the remaining  members as a Tribunal should, in  my opinion,  be made only under section 7 of the Act.     I  am  not impressed by the argument of Mr.  De  that  a Tribunal  is to be conceived of as an entity different  from the  members of which it is composed  and  whatever  changes might occur in the composition of the Tribunal, the identity of  the Tribunal remains intact. A  distinction  undoubtedly exists between the court and the judge who presides over  it but if the constitution of the court requires that it is  to be  composed  of  a certain number of  judges,  obviously  a lesser number could not perform the functions of the court.     Mr. De also argued that the very object of the Industri- al  Disputes Act is to ensure a speedy and quick  determina- tion of industrial disputes and section 426 15  of the Act expressly lays down that the  Tribunal  shall hold  its  proceedings expeditiously and shall, as  soon  as practicable, on the conclusion thereof, submit its award  to the  appropriate Government. This object, it is said,  would be  frustrated if the strict rules of ordinary law  are  ex- tended to the proceedings of an Industrial Tribunal.     It  is quite true that a quasi-judicial tribunal  enjoys greater flexibility and freedom from the strict rules of law and  procedure  than an ordinary court of law,  but  however much  informality  and celerity might be  considered  to  be desirable  in  regard to the proceedings  of  an  Industrial Tribunal, it is absolutely necessary that the Tribunal  must be  properly constituted in accordance with requirements  of law  before it is allowed to function at all. I fail to  see further  how  the  issuing of a  formal  notification  under section  7  of the Act could delay the  proceedings  of  the Tribunal or  hamper expeditious settlement of the  disputes. Section 16 of the Industrial Disputes Act makes the  impera- tive  provision  that the award of a Tribunal  shall  be  in writing and shall be signed by all the members.  So long  as there  is no change or alteration in the original  notifica- tion which  constituted  the  Tribunal,  the expression "all the  members" must mean and refer to all the  members  whose names  appear in this notification and, unless all  of  them sign  the award, it would not be a valid or operative  award in law.     Our  attention was drawn in course of the  arguments  to rule  12  of the rules framed by the Central  Government  in exercise  of its powers under section 38 of  the  Industrial Disputes Act. This rule, it is to be noted, was deleted with effect from 6th of December 1949. As it stood originally, it was  worded  as follows :--      "Where  a Tribunal consists of two or more members  the Tribunal  may with the consent of the parties  act  notwith- standing  any  casual vacancy  in  its number  and  no  act, proceeding or determination of the Tribunal shall be  called

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in question or invalidated by reason of any such vacancy." 427 It has been contended on behalf of the appellants that  this rule was ultra vires of the authority which passed it. It is not  necessary  for us for purposes of the present  case  to discuss  this  matter.  Assuming the rule to  be  valid,  it certainly  does  not assist the respondents in any  way,  as there is no suggestion in this case that during the  absence of Mr. Chandrasekhara Aiyar the proceedings continued before the remaining two members with the consent of both  parties. On the other hand, the provision in the rule certainly  goes against the broad contention that the respondents wanted  to raise  upon  the language of section 8. In  my  opinion,  as there  was  no notification by  the  appropriate  Government under section 7 of the Industrial Disputes Act  constituting the two members a Tribunal under the Act during the  absence of  Mr. Chandrasekhara Aiyar, the proceedings  before  these two members were void and inoperative and the award made and signed  by them only during this period must be held  to  be void.     I  do not think however that it should be held that  the Tribunal was not a properly constituted authority or  lacked jurisdiction  to  exercise its function when Mr.  Aiyar  re- sumed  his duties on 20th of February, 1950. As I have  said already, what is necessary for due constitution of an Indus- trial Tribunal is a notification or order by the appropriate Government  under section 7 of the Industrial  Disputes  Act and  the  number and names of the members as  given  in  the notification  form  an  essential or integral  part  of  the Tribunal  thus  constituted. If the services of one  of  the members cease to be available at any time as is contemplated by section 8 and the appropriate Government does not  choose to appoint another member in his place, one or other of  two consequences  may  follow.  The Government  may,  by  afresh notification under section 7, constitute a Tribunal with the remaining members or in any other way it likes or it may not take any steps at all and allow the original notification to remain.   It  can certainly be assumed that  the  Government will choose the latter alternative only 428 when  it thinks that the vacancy is only for a short  period and  is not likely to continue long. In such  circumstances, as I have already indicated, the true position is that   the remaining   members  cannot function as a Tribunal  and  all the proceedings must be held to remain in abeyance till  the absent  member  rejoins his duties.  But I do  not  see  any reason why there should be a fresh notification and a  fresh constitution of the Tribunal when the absent member returns. The  original  notification  is still  there  unaltered  and unamended  and  not affected in any way  by  any  subsequent notification; and by virtue of this notification alone,  the three  members would be competent to sit as a  Tribunal  and discharge its duties.  The fact that the services of one  of them were not available at a time would not make the  origi- nal  notification  null  and void. The only  effect  of  the absence  of  a member would be that  the  remaining  members would not be competent to continue the proceedings;but  this disability would cease as soon as the services of the absent member become available and a Tribunal as constituted by the notification is ready and able to function.     The  appellant’s  contention  seems to be  that  once  a vacancy  has  occurred,  the  Tribunal  becomes  imperfectly constituted and a fresh constitution is necessary. I do  not think that this position is sound.  As I have said  already, the  non-availability  of the services of a  member  may  be

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permanent  or  purely temporary and may be  due  to  various causes. The word "vacancy" has  no  technical  meaning.   As will    appear from a reference to the  Oxford   Dictionary, the  word  "vacancy"  is ordinarily used in the sense of   a "temporary   freedom   or   cessation  from  a  business  or occupation"   If the absence of a member was  merely  tempo- rary, the vacancy would mean nothing else but an interval or period  during which a  particular office  remained  unoccu- pied.   The question of a fresh appointment might  arise  if the vacancy was actually filled up; but, as has happened  in the  present  case, if the vacancy is not filled up  but  is allowed to remain, it would automatically come to an end 429 as soon as the member whose absence caused the vacancy comes back  and  rejoins the office.  It may be desirable  in  the interests  of  the  public to issue a notice  or  make some announcement  in regard to the resumption of duties  by  the absent  member, but in my opinion no reconstitution  of  the Tribunal with the self same  members is called for or neces- sary under the provisions of the Industrial Disputes Act. It is  pointed  out that cases may be conceived  of  where  the non-availability  of  the  services of a member  is  due  to death,  lunacy or some such circumstance; but in such  cases there  could  be no question of the man’s  coming  back  and joining his office, and as I have said already under section 16  of the Industrial Disputes Act no award would  be  valid unless all the members whose names appeared in the notifica- tion  signed  it. This would be impossible in  the  case  of death, lunacy or some other disablement of that character.     It will be seen that in the Government Notification  No. LR  60 (47) dated 20th March, 1950, it was expressly  stated that the services of Shri N. Chandrasekhara Aiyar, Member of the  All  India Industrial Tribunal  (Bank  Disputes),  were temporarily placed at the disposal of the Ministry of Exter- nal  Affairs with effect from 23rd November,  1949,  (after- noon).  Mr. Aiyar’s new duties continued till 27th  January, 1950.  As  soon as this work was over, he  was  regarded  as coming  back  to  his office as a member of  the  All  India Industrial Tribunal and he was allowed leave in that capaci- ty  by  the Ministry of Labour from 28th January,  1950.  to 19th February, 1950, (vide Notification No. LR 60 (73) dated 16th  September, 1950.) By another  Government  notification (being Notification No. LR 60 (47) dated 29th May, 1950), it was  declared that Shri Chandrasekhara Aiyar resumed  charge of his duties as member of the All India Industrial Tribunal on the 20th, February, 1950, (forenoon).     It  is  true that these notifications were  issued  much after  the time when Mr. Aiyar actually resumed his  duties, but  as  they are not notifications under section 7  of  the Industrial Disputes Act, and cannot constitute 480 a condition precedent to investing the Tribunal with  juris- diction  under the law, the delay in the actual  publication of the notices is really immaterial. They are relevant  only for the purpose of showing what the state of affairs  really was.  In my opinion, therefore, the Tribunal was a  properly constituted  authority on and from the 20th February,  1950, and  as the award dated 31st July, 1950, was signed  by  all the  three members appointed  under  the notification  dated 24th August, 1949, no objection is legally sustainable  that the award was made without any jurisdiction.     A  question  may be raised that as the  hearing  of  the general issues before the Tribunal commenced at a time  when Mr. Aiyar was absent and he had not the opportunity of being present  all through the proceedings when arguments of  both

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sides  were  advanced,  there has been  an  irregularity  or illegality in the procedure which vitiates the whole  award. A  decision  on this point would  require  investigation  of various matters which have not been placed before us at  the present  stage  by  the learned Counsel  appearing  for  the appellants  Banks; and I would refrain from  expressing  any opinion upon it.  My conclusion is that the award dated  the 31st of July is not void by reason of any lack of  jurisdic- tion  in the Tribunal which made it.  I am, however, of  the opinion  that  the other awards which were made  during  the absence of Mr. Chandrasekhara Aiyar or which were not signed by him must be held to be without jurisdiction.                                      Awards declared void.     Agent  for the appellants in Civil Appeals Nos, 35,  36, 37,  38, 39, 40, 41, 42, 43, 44, 45, 46 & 49:  Rajender  Na- rain.     Agent  for the appellants in Civil Appeals Nos.  48  and 50; Ranbir Sawhney.     Agent  for the appellant in Civil Appeal No. 47:  Ganpat Rai. Agent for the respondents: Naunit Lal. Agent for the  Inter- vener P.A. Mehta. 431