CHAPTER - VI

AWARDS AND JUDICIAL REVIEW

 CHAPTER - VI
AWARDS AND JUDICIAL REVIEW

6.1 Introduction

Award is the end product of the adjudication process. In order to have a

complete and clear picture of adjudication, as a method of settlement of industrial

disputes, it is necessary to study the meaning and definition of award, the types of

award, the law relating to the enforcement of award1 and the remedies available to the

aggrieved parties against the award.

6.2 Meaning and Definition of Award

Award is a technical term, generally used to denote the decision of an

arbitrator, adopted by the I.D.Act to apply to the determinations of industrial disputes

by the adjudicators under the Act. Since there is not much of a difference between the

adjudication process contemplated by the Act and industrial arbitration, the term

award has been adopted under the Act. Like the determination of a civil court, known

as decree, the determination by the adjudicator under the Act is known as award.

Sec. 2(b) of the I.D.Act defines the term as follows award means an interim

or final determination of any industrial dispute or of any question relating thereto by

any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an

arbitration award made under Sec. 10-A..

1 See Secs. 17-19 of the I.D.Act.

 323

6.2.1 Interim or final determination

The expression determination of any dispute means an adjudication of the

dispute on relevant materials. The determination contemplated is of a quasi-judicial

nature, implying thereby that the ad judicatory authority must exercise its own

judgment by applying its mind to the merits of the dispute.

The Supreme Court in Cox&Kings (Agents) Ltd. v. Their Workmen2 laid down

a two-fold test for a decision of the Tribunal to fall within the definition of award.

First, it must be an adjudication of a question or point relating to the industrial

dispute, which has been specified in the order of reference, or is incidental thereto;

and secondly, such adjudication must be on merits. The word determination also

implies that the adjudicator has to adjudicate upon the whole dispute as referred to

him. The adjudicator cannot determine only part of the dispute, by leaving the rest to

be determined by the parties.3

The Act itself distinguishes between award and other decisions of

adjudicators in certain cases. For example, Sec. 19 (4)of the Act, which empowers

the appropriate Government to reduce the period of operation of an award provides

for the reference of such a question to the adjudicator for a decision, whether the

period of operation should not be shortened and that the decision shall be final., It is

clear that such decision shall not be an award. Similarly, Secs. 33 and 33-C (2) use

the words order and decision, respectively, and the decisions of the adjudicator

2 (1977) I. L. L. J. 471 (S.C).

3 See Birla Cotton Spinning & Weaving Mills Ltd., v. Its Workmen.,(1962) I. L. L. J. 642 (S.C).
 324

under these Sections are not awards. This makes it clear that all the decisions of the

adjudicators under the Act are not necessarily awards within the meaning of Sec. 2(b)

of the Act.

6.2.2 Interim determination, award and relief

The word interim here means a temporary or provisional arrangement made

pending the final disposal of the dispute. In Hotel Imperial v. Hotel Workers Union4

the Supreme Court pointed out that it was open for the adjudicator to make the award

in respect of some of the matters referred to it, whilst some others remain to be

determined. This would be the determination of the matters decided and would be an

interim award. The Supreme Court in this case also ruled that an adjudicator is

empowered under Sec. 10 (4) of the Act to grant interim relief, with respect to

disputes referred, as a matter incidental to the points of dispute. The Court, however,

added that the interim relief should not be the whole relief that the workmen would

get if they succeeded finally.5 6The court left open the question whether the order

granting interim relief by the adjudicator would be an ward, within the meaning of

Sec. 2 (b), as it was not necessary to decide that question in the case. Again in Delhi

Cloth and General Mills v. Rameshwar Dayaf the Supreme Court did not decide this

question, as the impugned order of the Tribunal granting interim relief was set aside

on merits.

4 (1959) II L.L.U. 533 (S.C.)

5 Ibid., p. 552.
6 (1960) III. L.J. 712 (S.C.).
 325

This question assumes importance in view of the law that if it is an award, it

requires publication by the appropriate Government under Sec. 17 as a condition

precedent for its enforceability. There is a conflict of opinion on this question among

various High Courts. The Patna,7 Punjab,8 Delhi9 and Calcutta10 High Courts had

taken the view that an order granting interim relief must take the form of an award,

requiring publication under Sec. 17 of the Act. But the High Court of Karnataka held

that interim relief like a direction to pay subsistence allowance to a dismissed

workman during the pendency of a dispute concerning the validity of his dismissal, or

any other interim relief which the Tribunal/Labour Court has the power to grant, need

not and should not be made in the form of an award.*11

6.2.3 Decision on preliminary issues

The Supreme Court in Cox & Kings (Agents) Ltd v. Their Workmen set at

rest the conflicting opinions of various High Courts and held that the decision of the

adjudicator on preliminary issues like, industry, industrial dispute, workman,

etc., is not an award, as there was no adjudication on merits and that such a decision

cannot also be said to be a determination of any industrial dispute or any related

question or a matter incidental thereto.

7 Management of Bihar State Electricity Board v. The Workmen; (1971) I L.L.J3S9 (Pat); and
Management of Bihar Khadi Gramodyog Sangh v. State ofBihar, (1977), Lab. I.C. 466 (Pat).
8 Punjab National Bank Ltd. v. A. N. Sen', AIR 1952 Punj 143.
9 Mehr Singh v. Delhi Administration, ILR (1973) I Delhi 732.
10 Jeevanlal (1929) Ltd. v. State of West Bengal, (1975) Lab. I. C. 1162 (Cal).
11 Darshak Ltd. v. Industrial Tribunal, (1986) IL. L. J. 253 (Kant).
12 Supra note. 2.
 326

6.2.4 Compromise or consent award

Compromise or consent award means an award made by an adjudicator

embodying the compromise arrived at between the parties during the pendency of

adjudication proceedings. It has been the policy of the judiciary that if the parties

arrived at a settlement of the dispute amicably, even after the same has been referred

for adjudication, the settlement should be preferred, provided that the settlement is

considered to be fair and just. In such a case, if the parties approach the adjudicator to

pass an award in terms of the settlement, the adjudicator shall normally adopt the

settlement and pass a compromise award. But before accepting the compromise

settlement as an award, it is essential that the Tribunal must bring its judicial mind to

bear upon it and make a determination that the compromise is just, fair and equitable

under the circumstances.13

6.2.5 Withdrawal of the dispute

An order of the Tribunal permitting the parties to withdraw the dispute from

adjudication of a private settlement by subsequent negotiations or by arbitration does

not amount to an award, as there was no adjudication on merits and the dispute

remains unresolved. The Supreme Court finally resolved the conflict of opinion

among various High Courts on this point.14

13 See State of Bihar v. D. N. Ganguly., (1958) I. L. L. J. 634 (S.C.).

14 Supra note 2.
 327

6.2.6 Dismissal for default

Similarly, when a reference is dismissed for default of appearance of workmen,

who claimed the relief, or of both the parties, the order of the adjudicator cannot take

the form of an award, although the proceedings have been terminated.

6.2.7 Ex-parte award

On the other hand, where the Tribunal precedes ex-parte, in case anyone party

fails to attend, it makes an ex-parte award after applying its mind fully to the material

placed before it by the party appearing. Such ex-parte decision is an award within the

meaning of Sec. 2 (b), requiring publication under Sec. 17 of the Act.

6.3 Form of an award

Sec. 16 (2) of the Act simply states, the award of a Labour Court, Tribunal or

National Tribunal shall be in writing and shall be signed by the presiding officer. No

particular form is prescribed. Usually, an award contains two parts, namely, recitals

and the operative part. Although, it is not necessary for its validity that it should

contain an introduction, it is normally added for the sake of clarity. Sometimes, it

may be difficult to understand the operative part without some preliminary

explanation. Therefore, generally the ward contains recitals giving particulars about

the dispute. The operative part of the award is the actual decision of the adjudicator

upon the matters in dispute under reference. It is the essential part of the award. The

award must be certain and consistent in all its parts. The award must cover all the

points referred to it for adjudication. In order that the award shall be valid, it is
 328

essential that it should be confined to the points specified in the order of reference and

matters incidental thereto.15

The award must be certain, in the sense that the parties must know what they

are required to do in terms of the award. The award should contain the findings of the

adjudicator and the materials on the basis of which the findings are based. The award

should finally give directions necessary for proper implementation of the award. The

directions should not be contrary to the law and they should be within the scope of

powers of the adjudicator.

6.4 Publication of awards

The adjudicator shall submit the award to the appropriate Government.16 The

appropriate Government shall then within a period of thirty days from the date of its

receipt publish the award in such manner as the Government thinks fit. It is

mandatory for the appropriate Government to publish the award, unless it is prevented

from doing so by an order of a Court of competent jurisdiction. Sometimes, to avoid

conflict between a settlement and award, the Courts had ordered the Government to

withhold publication.18 Excepting in such extra-ordinary circumstances, the

appropriate Government is duty bound to publish the award, because unless the award

is published it cannot become enforceable under the scheme of the Act.

15 See Sec. 10 (4) of the I.D. Act..

16 See Sec. 15 of the I.D.Act.
17 See Sec. 17 (1) of the I.D. Act.
18 See for example, Sir Silk Ltd v. Government ofA. P (1963) IIL. L. J. 647 (S.C.).
 329

6.5 Commencement or Enforceability of an award

Subject to the power of the appropriate Government to defer the enforceability

and later to reject or modify the award in the circumstances specified in Sec. 17-A,

the award which has been published shall become enforceable on the expiry of thirty

days from the date of its publication.

Unless the award becomes enforceable, no rights and liabilities can arise under

the award. In other words, the obligations imposed by the award on the parties shall

come into effect immediately after the expiry of thirty days statutory period from the

date of its publication.

It may be noted that the Trade Unions and Industrial Disputes (Amendment)

Bill, 1988 sought to remove the time gap between the date of publication and the date

of enforceability. It was proposed in the Amendment that the award should become

enforceable immediately after its publication. Consequently, this Amendment also

sought to omit the objectionable provision now contained in Sec. 17-A, which

empowered the appropriate Government to defer the enforcement of the award and

later to reject or modify the award. This would have removed the anomaly of

empowering the Government to reject or modify the award in cases where the

Government itself is a party to the dispute.

6.6 Coming into operation of an award

Sec. 17-A (4) lays down that the award shall come into operation with effect

from such date as may be specified therein, but where no date is specified, it shall

come into operation on the date when the award becomes enforceable.
 330

The Act distinguishes between the enforceability and coming into operation of

an award. Coming into operation envisages the date from which the benefits provide

in the award shall be available to the parties. The adjudicator, according to this

Section, has discretion to bring the award into operation from any date that may be

specified in the award. Depending upon the nature of dispute, the time taken for the

adjudication, etc., the adjudicator may determine the date from which the award shall

come into operation. The adjudicator may specify a date even anterior to the date of

reference for bringing the award into operation.19 But, if the adjudicator does not

specify any such date, then the date of enforceability and the date from which the

award shall come into operation synchronise.

6.7 Persons on whom the wards are binding

According to Sec. 18 (3) of Act, an award of a Labour Court, Tribunal or

National Tribunal, as the case may be, which has become enforceable shall be binding

on-

a) all the parties to the industrial dispute;

b) all other parties summoned to appear in the proceeding as parties to the

dispute;

c) where the party referred to in clause (a) or clause (b) is an employer, his

heirs, successors or assigns in respect of the establishment to which the

dispute relates;

19 See for detailed discussion, Retrospective operation of an award, in Chapter V.

 331

d) where the party referred to in clause (a) or clause (b) is composed of

workmen, all persons employed in the establishment or part of the

establishment, as the case may be, to which the dispute relates on the date

of the dispute and all persons who subsequently become employed in that

establishment or part.

6.8 Period of operation of awards

Sec. 18 (3) lays down that an award shall remain in operation for a period of

one year from the date on which the award becomes enforceable under Sec. 17-A.

This one-year period of operation is subject to the power of the appropriate

Government to reduce or enhance the period, under the provisions of Sec. 19, Sub-

sec.(6) of Sec. 19 further provides, Notwithstanding the expiry of the period

operation under sub-section (3), the award shall continue to be binding on the parties

until a period of two months has elapsed from the date on which notice given by any

party bound by the award to the other party or parties intimating its intention to

terminate the award. According to sub-sec.(7), the notice, in order that it shall have

effect, should be given by a party representing the majority of persons bound by the

award. As per sub-sec.(5) the period of operation shall not apply to any award, which

by its nature, terms and other circumstances does not impose, after it has been given

effect to, any continuing obligation on the parties bound by the award.

So far the award continues to be binding on the parties, any reference of the

matters covered by the award for adjudication is barred. If the parties want to raise

fresh demands on the matters covered by the award, they have to first terminate the
 332

award by giving two months notice. If any party intends to terminate the ward on the

expiry of the statutory period of one year, it is necessary that notice must be given two

months prior to the date of such expiry.

Further, although the requisite notice has been given and the award is

terminated, the rights and obligations flowing from the award are not automatically

extinguished. It only clears the field for fresh demands and negotiations or a fresh

reference. In South Indian Bank Ltd. v. A. R. Chacko, the Supreme Court held that

even if an award ceased to be in operation, it will continue to have its effect as

contract between the parties that has been made by industrial adjudication in place of

the old contract till it is replaced by another contract.21 Further, during the period of

operation of an award, any strike or lockout in respect of the matters covered by the

award shall be illegal.

It is relevant to note here that the Trade Unions and Industrial Disputes

(Amendment) Bill-1988 sought to amend the law relating to the period of operation of

the award by the substitution of a new sub-section (3) in Sec. 19 to the following

effect:

an award shall, subject to the provisions of this Section, remain in operation

for such period as is specified therein and if no such period is so specified, for
a period of three years from the date on which the award becomes enforceable
under Section. 17.

20 Ibid, p. 22.
21 See Sec. 23 (c) and Sec. 24 of the I.D. Act.
 333

6.9 Finality and Judicial Review of awards

Sec. 17 (2) I.D.Act declares Subject to the provisions of Section 17-A, the

award published under sub-sec. (1) shall be final and shall not be called in question by

any court in any manner whatsoever.

This provision, first, seeks to oust the jurisdiction of the civil courts against the

awards of adjudicators under the Act. Secondly, it implies that there is no appeal or

revision against the awards. Although the finality contemplated has the effect of

ousting the jurisdiction of civil courts, cases do not want where the civil courts did not

hesitate to set-aside the award as null and void on the ground that such awards are not

the awards contemplated by the Act. It is well established that whatever may be the

width of an outer or privative clause in a statute; the civil courts still enjoy powers to

interfere in cases of gross violations of law.

Save such exceptional cases, the general rule is that the civil courts have no

jurisdiction to entertain any suits questioning the validity of awards. Therefore, for all

practical purposes, the only remedies available to the parties aggrieved by the awards

are the Constitutional remedies. The language used in Sec. 17(2) has no effect of

excluding the Constitutional remedies and so the High Courts and the Supreme Court

have power to test the legal validity of the awards.

6.9.1 Constitutional Remedies

The orders and awards of the adjudicators, whose functions are of quasi

judicial nature, are reviewable in writ jurisdiction under Art. 32 by the Supreme Court

22 See for instance, Asbestos Cement Ltd. v. P. D. Savarkar, (1970) IIL. L. J. 129 (S.C.).
 334

and under Art. 226 of the Constitution by the High Courts. While the writ jurisdiction

of Supreme Court Under Art. 32 can be invoked only for the enforcement of

fundamental rights, the writ jurisdiction of High Courts under Art. 226 can be

involved not only for the enforcement of fundamental rights but also for any other

purpose.

Further, after the decision of the Supreme Court in Bharat Bank Ltd v.

Employees of Bharat Bank Ltd.,~ it was established that the order and awards of

industrial adjudicators are subject to judicial review by the Supreme Court directly

under the special leave appellate jurisdiction under Art. 136 of the Constitution. In

this case the Supreme Court held that the ad judicatory authorities under the Act

would fall within the meaning of the term tribunal in Art. 136 of the Constitution,

as these authorities have all the trappings of a court and perform functions which

cannot but be Regard as judicial.24

When a writ petition is field in a High court under Art. 226, a single judge or a

larger Bench may hear it. If a single judge decides the petition, a writ appeal will lie

to a division Bench. Against the order of the larger Bench or a division Bench, an

appeal by certificate will lie to the Supreme Court under Art. 132, if it involves

substantial question of law as to the interpretation of the Constitution, or under

Art. 133, as such proceedings are considered as civil proceedings. If the High Court

refuses certificate for appeal under Arts. 132, the aggrieved party may move the

23 (1950) L.L.J. 921 (S.C.).

24 See P. D. Sharma v. State Bank of India, (1969) I. L. L. J. 513 (S.C.).
 335

Supreme Court under Art. 136, for special leave to appeal against the decision of the

High Court. When the appeal is against the orders of a High Court in a writ petition,

the jurisdiction of the Supreme Court will be the same as that of the High Court in

dealing with the writ petition.

Therefore, it is advantageous for the aggrieved party to move the Supreme

Court directly against the award under Art. 136; but the petitioner runs the risk that

the Supreme Court may not grant leave, as the remedy under Art. 136 are purely

discretionary. For example, in S.C. Chemicals and Dyes Trading Employees, Union

v. S.C. Chemicals and Dyes Trading Ltd., the Supreme Court expressed its

reluctance to entertain the petition for special leave to appeal under Art. 136, where

other equally efficacious remedy are available (i.e. under Art. 226 and 227 of the

Constitution). Although in this case the Court granted special leave to appeal after

satisfying itself of the reasons given by the appellant union for approaching the

Supreme Court directly against the award, the Court, speaking through Justice Madon,

expressed a note of caution in the following words:

Today, when the dockets of this Court are over-crowed, nay almost choked,
with the flood, or rather the avalanche of work pouring into the court,
threatening to sweep away the present system of administration of justice
itself, the Court should be extremely vigilant in exercising its discretion under
Art. 136.

In addition to the above remedies, the aggrieved party may also petition the

High Court under Art. 227, which confers the power of superintendence on the High

25 (1986) Lab. I. C. 863 ( S.C.).

 336

Court over all courts and tribunals within its territorial jurisdiction. The power is

exercised by the High Court only sparingly and in exceptional cases.

6.9.2 Limited nature of writ jurisdiction

The jurisdiction of the writ Courts under Art. 226, to issue, appropriate writs

and directions, is only of a supervisory nature. The writ Court cannot sit in appeal

over the findings recorded by the Tribunal. The question of sufficiency or adequacy

of evidence will not be open before the writ Court. The writ Court cannot go into the

merits of the dispute. The writs of certiorari and prohibition, the appropriate writs to

control the improper exercise of power by inferior courts or tribunals or other quasi

judicial bodies, are issued on certain well-established grounds. It is not that every

wrong decision of the tribunal is review able by a certiorari. The remedy under Art.

226, being discretionary, may not be granted when the aggrieved party has not availed

of any efficacious alternative remedy. Further, the writ may not be granted when

there is unreasonable delay in approaching the Court, on the ground of laches.

Dealing with the limitations of the powers of the writ Court under Art. 226

with regard to the review of findings of fact, on a petition for the issue of writ of

certiorari Justice Gajendragadkar succinctly stated the law in Syed Yakub v. Radha

Krishna,26 in the following words:

The jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and

the Court exercising it is not entitled to act as an appellate Court. This
limitation necessarily means that findings of fact reached by the inferior Court
or Tribunal as a result of appreciation of evidence cannot be reopened or

26 AIR 1964 S.C. 477 (479).

 337

questioned in writ proceedings. An error of law, which is apparent on the face

of the record, can be corrected by a writ, but not an error of fact, however
grave it may appear to be. In regard to a finding of fact recorded by the
Tribunal, a writ of certiorari can be issued if it is shown that in recording the
said finding, the Tribunal had erroneously refused to admit admissible and
material evidence, or had erroneously admitted inadmissible evidence, which
has influenced the impugned finding. Similarly, if a finding of fact is based
on no evidence, that would be regarded as an error of law which can be
corrected by a writ certiorari. In dealing with this category of cases, however,
we must always bear in mind that a finding of fact recorded by the Tribunal
cannot be challenged in proceedings for a writ of certiorari on the ground that
the relevant and material evidence adduced before the Tribunal was
insufficient or inadequate to sustain the impugned finding. The adequacy or
sufficiency of evidence led on a point and the inference of fact to be drawn
from the said findings are within the exclusive jurisdiction of the Tribunal,
and the said points cannot be agitated before a writ Court.

The Supreme Court and High Courts, modulating them to the exigencies of

each individual case, have ever since followed these principles.27 The writs of

certiorari, in most cases, and the writ of prohibition, very rarely, are the writs that are

generally sought for challenging the validity of the awards or other decision of the

adjudicators. In appropriate cases, the writ of mandamus may also be issued, if the

Tribunal fails to perform any of its statutory duties in the course of adjudication

proceedings.

27 Joint Registrar of Co-Operative Societies v. P.S. Rajagopalan Naidu,(\91\) I.S.C.R. 227 (236).
 338

6.9.3 Grounds of judicial review of awards

Both the writs of certiorari and prohibition are issued on similar grounds. The

main difference between them lies in the stage at which they are issued. If the inferior

tribunal had already rendered the decision, the appropriate writ is certiorari and if the

tribunal is still seized of the matter, which it had no jurisdiction to entertain, the writ

of prohibition is the appropriate remedy. Whereas the certiorari quashes, the

prohibition prohibits. The lack of jurisdiction of the quasi-judicial authority was the

original basis of these writs. Later on some more grounds have been added, so as to

make these writs more broad based for correction of illegalities by the inferior courts

or tribunals. The objects of these writs are to qush or prevent improper exercise of

power by the judicial or quasi-judicial authorities. The specific grounds on which the

writs are issued are briefly discussed hereunder.

(1) Violation of Fundamental Rights: It is well established that the Supreme Court

under Art. 32 and the High Courts under Art. 226 will quash orders or directions or

awards of quasi-judicial authorities, when they contravene the fundamental rights or

are ultra-vires the fundamental rights guaranteed in Part -III of the Constitution.

(2) Violation of other Constitutional Safeguards: Violation of Constitutional

safeguards other than the fundamental rights can be reviewed by the High Courts

under Art. 226 For example, the order, which contravene the mandatory provision of

Art. 311 of the Constitution may be quashed by a writ of certiorari. But this ground

does not play a noticeable role in industrial law.

28 See Jagannath Baksh Singh v. State of U. P., AIR 1962 SC 1563.

 339

(3) Jurisdictional Errors: As a general rule, excess or abuse of statutory jurisdiction

will be quashed or prohibited as ultra-vires. Broadly speaking, the word jurisdiction

means the authority to decide. Historically, judicial review of administrative action

was based on the principle of ultra-vires, i.e., beyond the powers or jurisdiction. It is

a salient principle of rule of law that every statutory authority must confine itself to

the powers conferred on it by law and cannot go beyond the statutory powers. No

authority can act beyond its powers is thus the basic principle of administrative law.

As far as the adjudicatory authorities under the Act are concerned, the

jurisdictional defects, which render the awards made by them illegal and invalid, may

arise in the following cases.

a) Absence of jurisdiction: Secs - 7, 7-A and 7-B of the Act lay down the

requirements of law for the constitution of the Labour Courts, Tribunals and National

Tribunals, respectively, and the qualifications for the appointment of presiding

officers. Sec. 7-C prescribed certain disqualifications. Hence, if these authorities are

constituted contrary to those requirements or if the presiding officer does not posses

the requisite qualifications or suffers from any one of the disqualification, their

continuance in office as well as their orders and awards are reviewable on the ground

of absence of jurisdiction.29 An improperly constituted authority will be amenable to

the writ of quo warranto and the proceedings before them may be prohibited by a writ

of prohibition. Any order or awards made by such authorities are liable to be quashed

by a writ of certiorari.

29 See Bharat Bank Ltd., v. Employees ofBharat Bank Ltd., (1950) L. L. J. 921 (S.C.).
 340

(b) Excess or lack of jurisdiction: The jurisdiction of the adjudicatory authorities

under the Act is restricted by certain statutory provisions like, Secs. 10 (1) (c) and first

proviso to it, 19(4), 33, 33-A, 33-c (2) and 36-A of the Act. Therefore, if the order or

awards do not conform to these provisions of law, as interpreted by the Courts, they

are illegal and may be quashed by a writ of certiorari. Such jurisdictional defects may

arise on account of the nature of subject matter of enquiry. For example, under Sec.

10 (1) (C), only a dispute relating to any matter specified in the Second Schedule can

be referred for adjudication to a Labour Court And as per the first proviso to Sec. 10

(1), a dispute relating to any matter specified in the Third Schedule can be referred to

a Labour Court, if it is not likely to affect more than one hundred workmen. If this

proviso is not complied with in making a reference to the Labour Court, it will have

no jurisdiction to adjudicate upon such dispute and so if any award is rendered, it is

liable to be quashed on the ground of lack of jurisdiction. Then Sec. 10 (4) lays down

overall limits on the jurisdiction of these authorities. The authorities must confine

their adjudication only to the points specified in the reference and matters incidental

thereto. Therefore, if the authority exceeds its jurisdiction and decides matters which

are neither specified nor matters which can be considered as incidental, the reviewing

Court can quash such decisions.

(c) Refusal to exercise jurisdiction: If the adjudicator declines to exercise the

jurisdiction which it has under the provisions of the Act, the order or the award may

be quashed on certiorari and a writ of mandamus may be issued commanding the

authority to hear and decide the matter according to law.

 341

(d) Jurisdictional or Collateral issues: Jurisdictional issues are those on the correct

determination of which the jurisdiction of the authority depends. They are also

known as collateral or preliminary issues. It is called collateral in the sense that it is

an adjunct or supporting issue to the merits. It is called preliminary because the issue

has to be decided first to determine whether the authority has jurisdiction to proceed

with the enquiry or not.

The jurisdictional questions, which generally arise under the Act for

preliminary determination, upon which the jurisdiction of the authority to go in to the

merits depends, are:

(i) Whether the Tribunal is properly constituted and whether the presiding officer

possesses the appropriate qualification prescribed and does not suffer from any

disqualifications, as laid down in Secs. 7, 7-A, 7-B, and 7-C. (ii) whether the

Government making the order of reference is the appropriate Government within the

meaning of Sec. 2 (a) of the Act?

It is important to note here that the above two questions cannot be decided by

the adjudicatory authority, whose jurisdiction is limited by the order of reference

made by the appropriate Government. These jurisdictional issues may, therefore, be

raised only before the reviewing Court.

The following jurisdictional questions are within the competence of the

adjudicatory authorities and any wrong decision on these questions is reviewable by

the High Court or the Supreme Court, as the case may be.
 342

(iii) Whether the dispute that is referred for adjudication is an industrial

dispute, within the meaning of Sec. 2 (k) of the Act?

(iv) Whether the activity of the establishment to which the dispute relates is

an industry, as defined in Sec. 2(j) of the Act? (If the activity is not an

industry, the dispute relating to it cannot be an industrial dispute).

(v) Whether the employee concerned is a workman within the meaning of

Sec. 2(s) of the Act?

(vi) For exercising jurisdiction under Sec. 33-A, whether there is

contravention of Sec. 33 or not?

(vl,) Whether certain facts and conditions exist justifying the authorities to

accord permission or approval under Sec. 33?

(vu,) Whether the requisite conditions for exercising jurisdiction under Sec.

33-C (2) exist?30

The findings, which the adjudicator may arrive at on these jurisdictional issues,

will determine whether he has jurisdiction to deal with the merits of the dispute or not.

For example, if the finding is that the dispute is not an industrial dispute that would be

the end of the proceedings before the authority. On the other hand, if the finding is

that it is an industrial dispute, the Tribunal will have jurisdiction to deal further with

the actual dispute referred and made an award.

The finding, which the adjudicator makes on every preliminary issue, is a

finding on a jurisdictional fact, whose existence is the condition precedent for the

30 Malhotra O. P., The Law ofIndustrial Disputes, (1998) Vol. 2 p.1264.

 343

Tribunal to assume jurisdiction on merits. Therefore, whenever an objection relating

to the jurisdiction of the adjudicator is raised, that question is normally decided first

as a preliminary issue before proceeding with the adjudication on merits. It is now

well settled that the superior Court can review even findings of fact relating to

jurisdictional issues arrived at by the inferior tribunal, as the jurisdiction of the

adjudicator depends upon the correct determination of these jurisdictional fact. An

authority cannot assume jurisdiction, which it does not in fact have, by a wrong

decision of the jurisdictional facts.

In addition to these jurisdictional issues, if the authority commits any error of

law affecting jurisdiction, the review Court has power to interfere and correct such

errors of law.

(4) Error of law apparent on the face of the record: It is now well established that

the writ of certiorari can be issued to quash a decision of an inferior tribunal on the
-i i

ground of error of law apparent on the face of the record The error of law in order to

be apparent on the face of record should be a manifest or patent error in

contradistinction to a mere wrong decision

For the purpose of reviewing the wrong decisions of quasi-judicial authorities

on questions of law, a distinction is drawn between errors of law affecting the

jurisdiction and errors of law within the jurisdiction. Whereas the errors of law

31 The concept was originally recognized in R. v Northumberland Compensation Appeal Tribunal, ex-
parte Shah., 1952 I K.B.338. This technical British concept was adopted by the Indian Courts-See for
detailed discussion i) T.G.Basappa v T.Nagappa, AIR 1954SC 440 and ii) H.VKamath v Ahmed
Ishaque; AIR 1955 S.C 233.
 344

affecting the jurisdiction are always reviewable, the errors of law within the

jurisdiction are reviewable only when they are apparent on the face of the record. It

means that if the error of law is one within the jurisdiction and it cannot be said to be

an error on the face of the record, the review Court does not interfere with such error

of law. Where the award of the Tribunal is plainly inconsistent with the relevant

statutory provisions, or it has been rendered in complete ignorance of any decision of

a higher Court, which is binding on the Tribunal, the error of law will be considered

as a patent error. But an error which can be established only by a long drawn process

of reasoning or where one of the two possible opinions on any legal issue is adopted,

it cannot be said to be an error of law apparent on the face of the record. However,

the concept of error of law apparent on the face of the record is comprised of many

imponderables and it is not capable of precise definition. NO objective criterion can

be laid down to distinguish between mere error of law and a patent error of law and

to a large extent it depends upon the subjective element. What is a patent error for
'X')

one judge may not be so for another. In Kays Concern v. Union of India the

Supreme Court held that if an adjudicatory body disposes of a matter without

applying its mind to a material circumstance, which has been duly brought to its

notice, it amounts to a patent error of law. Similarly, if the authority ignores relevant

considerations or takes into account irrelevant considerations, in reaching its

decisions, it amounts to a patent error of law.33

32 AIR 1976 S.C. 1525.

33 Shanmugam v. S.R.V.S., AIR 1963, SC 1626.
 345

Since it is not always easy to distinguish between a patent and latent error of

law, it would be much simpler if the Courts discard the distinction and become final

judge of all errors of law. With the blurring of the distinction between an error of

law and jurisdiction error and also with the expansion of the concept of patent

error of law, the scope of mere error of law has been very much narrowed down.

Whenever a Court wants to interfere, it can characterize an error of law as either

jurisdictional or patent.34

5. Violation of principles of Natural Justice

The humanizing principles of natural justice, in a very broad sense means

fairplay in a actions; known as due process of law. In a general sense, natural

justice means simply the natural sense of what is right or wrong and even in a

technical sense it is now equated with fairness. But in administrative law it is the

name given to two fundamental rules of fair procedure, considered as the elementary

rules of any civilized jurisprudence, namely, that a man shall not be a judge in his

own cause (nemo judex in resua), i.e., the rule of reasonable opportunity of hearing.

Justice Hegde in A.K. Kripak v. Union of India 35 observed, The aim of

natural justice is to secure justice or put it negatively to prevent miscarriage of

justice.

34 Jain M.P. and Jain S.N., Principles ofAdministrative Law, (1986), p. 535.
35 AIR 1970 SC 150(156).
 346

Although in the course of time some more subsidiary rules came to be added to

the rules of natural justice, the essence of these rules is impartiality and fair

hearing.

i) Rule against Bias: Bias may be personal, pecuniary, or official or policy bias,

which generally disqualifies a person from being an adjudicator. Sec.7-C of the Act

incorporates the rules against bias. This Section declares that no person shall be

appointed to, or continue in the office of the presiding officer of a Labour Court,

Tribunal or National Tribunal, if he is not an independent, if he is unconnected with

the industrial dispute referred to him or with any industry directly affected by such

dispute.

Therefore, if there is any such circumstance, which is likely to influence the

decision of the adjudicator one way or the other, he should desist from adjudicating

upon such dispute.

ii) Hearing both the sides: It is fundamental to a fair procedure that both sides must

be heard. The first requirement of this rules is that the persons who are likely to be

directly affected by the decision should be given adequate notice of the proceedings,

so that they can effectively represent their case, Rule. 13 of the I.D.(Central)Rules,

1957 prescribes that the adjudicator shall inform the parties to the industrial dispute,

of the time and place of hearing, in such manner as he thinks fit. Unless the notice is

definite and given ample time to the parties, it may be considered as inadequate and

the proceedings are liable to be quashed for violation of the principles of natural

justice. Further, reasonable opportunity of hearing postulates four requirements such

 347

as: a). Receiving all relevant and material evidence which a party wishes to adduce in

support of its case, b). disclosure of materials which the adjudicator wants to rely on

to the concerned parties, c) taking of evidence of the opposite party in his presence;

and d) giving opportunity to rebut the evidence of the other party by cross

examination or explanation.

Although the adjudicators under the Act are not bound by the technical rules of

evidence as laid down in the Indian Evidence Act, they cannot ignore the substantive

rules which form part of the principles of natural justice. If the reviewing Court finds

that the complaining party had not had a reasonable opportunity of representing his

case, the award of the adjudicator is liable to be quashed on certiorari.

6. No evidence rule: Although as a general rule, the findings of fact are the domain of

the adjudicators, and so the reviewing Court would not interfere with the findings of

fact arrived at by them, but if a finding of fact is based on no evidence at all, the Court

would quash such a finding of fact. This is so because, it is generally recognized that

whether or not there is evidence to support a finding is considered always as a

question of law. No doubt, the writ Court would not go into the adequacy or

sufficiency of evidence warranting the conclusion arrived at by the adjudicator. But

the case is different if the determination is wholly unsupported by evidence. Such

decisions are often called perverse or ultra-vires findings.

No evidence does not mean only a total dearth of evidence; it extends to any

case where the evidence, taken as a whole, is not reasonably capable of supporting the
 348

findings; or where, in other words, no tribunal could reasonably reach that conclusion

on that evidence.36

7. Fraud and Collusion: The reviewing Courts have an inherent jurisdiction to quash

the orders or awards of a Tribunal if they have been procured by fraud or collusion.

The allegations of fraud or collusion have to be specifically pleaded and proved by

relevant evidence. In the words of Lord Denning, no judgment of a Court, no order

of a minister can be allowed to stand if it has been obtained by fraud.

6.10 Grounds of judicial review under Art. 136

As stated earlier, the Supreme Court enjoys very wide powers of interference

with the decisions of Tribunals in the exercise of its special leave appeal jurisdiction

under Art. 136 of the Constitution. Although the powers of the Supreme Court under

Art. 136 are of appellate nature, the Court had generally restricted itself the ambit of

its jurisdiction, as it exercises under this Article not the general appellate power but

special appellate power to be exercised to prevent any substantial injustice to the

parties. The grounds on which the Supreme Court would generally interfere with the

decisions and awards of industrial adjudicators are i) Excess of Jurisdiction; ii)

approach to the question referred to in a manner which is likely to result in injustice;

iii) adoption of a procedure which runs counter to the well established rules of natural

justice; i.e., a) denial of hearing to the party, b) refusal to record hearing of a party;

36 H.W.R Wade, Administration Law (5th Edn.), p. 287.

37 Lazarus Esta Ltd., v. Beaslay, (1956) I ALL.E.R. 341 (345), quoted in Malhotra, O.P., supra note
30, p. 1313.
 349

and c) acting in any other manner in any arbitrary or despotic fashion.38 iv) where

there is an apparent error on the face of the decision; V) where the Tribunal has

erroneously applied the well-accepted principles of jurisprudence.39 vi) that the

appeal raises an important principle of industrial law requiring elucidation and final

decision by the Supreme Court; vii) that the appeal discloses such other exceptional or

special circumstances which merit consideration of the Supreme Court.40

These grounds give a clear indication that the Supreme Court has full

discretion to interfere with the decision and awards of industrial adjudicators on a

wide range of factors, wherever it feels that its interference is warranted.

6.11Conclusion

Award, interim or final, shall be pronounced in the open court just like the civil

courts. The present system of publication of awards by the appropriate Government is

dilatory and causing undue delay in realising the benefits under the Award. Awards

should become enforceable immediately after its pronouncement by the Presiding

Officer. However one month time may be given for challenging the award by the

aggrieved party. Further the adjudicating courts should be provided with execution

powers for quick implementation of awards passed by them. The present system,

except in some states who have given such powers to these courts, is cumbersome and

38 Bharat Bank Ltd., v. Employees ofBharat Bank Ltd., (1950) L. L. J. 921, (935-36)(S.C.).
39 Clerks and Calcutta Tramways Co. Ltd., v. Calcutta Tramway Co. Ltd., (1956) II L.L.J. 450 (452)
(S.C.).
40 Bengal Chemical and Pharmaceutical Works Ltd., v. Their Employees, (1959) I. L. L. J. 413 (415)
(S.C.).
 350

is causing delay in execution of the awards. The appellate courts shall have to decide

the writs challenging the validity of the awards on priority basis as early as possible,

so that unnecessary delay in realisation of the fruits under the awards can be avoided.

Introduction of some of these changes would help the quick and effective

enforceability of awards.