JUDGMENT
Roy, J.
1. This civil revision application is directed against an order dated 6.2.1980 passed by the Presiding Officer, Labour Court, Jamshedpur, prescribed authority under the Bihar Shops and Establishments Act, 1953 (hereinafter to be referred to as ‘the Act’) in B. S. Case No. 31 of 1976 dismissing the petitioner’s complaint under Section 26(2) of the Act.
2. A preliminary objection has been raised on behalf of the opposite party that no revision under Section 115 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) could be entertained against the order of the Labour Court passed under Section 26(6) of the Act. The Labour Court has passed the order under challenge as an authority prescribed under Sub-section (2) of Section 26 of the Act read with the rules framed thereunder. The question whether the civil revision application is maintainable had been referred to the Full Bench by a Division Bench of this Court by an order dated 16.4.1986. The order of reference is rather an elaborate one and needs to be summarised before we embark upon any enquiry as to the validity of the preliminary objection raised.
3. On behalf of the petitioner, reliance was placed on three Bench decisions of this Court in Imperial Tobacco Company v. Assistant Labour – Commissioner, Patna AIR 1967 Patna 153; Indian Tube Company Limited v. P. Mishra 1969 BLJR 589 and Calcutta Chemical Company Limited v. D. K. Burman AIR 1969 Patna 371; 1969 BIJR 510: wherein it has been held that the Court was inclined to take the view that the Labour Court was a court subordinate to the High Court. The petitioner also relied upon a Full Bench decision of Rajasthan High Court in the case of Mangilal v. Chunnilal 1980 40 FLR 82; where that Court had held that the Commissioner appointed under Workmen’s Compensation Act, 1923 is a court within the meaning of Section 115 of the Code. Reference was also made to a Bench decision of this Court in A. Hasan v. Md. Shamsuddin AIR 1951 Patna 140, where the authority constituted under the Payment of Wages Act was held to be a Court subordinate to the High Court within the meaning of Section 115 of the Code.
4. On behalf of the opposite party, reliance was placed on a Special Bench judgment of this Court and a Full Bench judgment of Allahabad High Court, namely, Jagarnath v. Land Acquisition Deputy Collector AIR 1940 Patna 102 and H.C.D. Mathur v. Eastern Indian Railway AIR 1950 All 80 respectively. In Jagarnath (supra) it was held that a Land Acquisition Officer exercising power under Section 18 of the Land Acquisition Act is not Court and in H.C.D. Mathur (supra) it was held that authority constituted under the Payment of Wages Act is not a Court subordinate to the High Court within the meaning of Section 115 of the Code.
5. Noticing that the state of the case law, the Division Bench thought the point fit to be decided by a Full Bench by an authoritative decision on the point. During the course of hearing besides the above cases, decisions of Supreme Court and of different High Courts were cited at the Bar. I will refer them at the appropriate place.
6. The relevant statutory provision may be noticed first. The relevant portion of Section 115 of the Code runs thus:-
“115. Revision – (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereof, and if such subordinate Court appears-
(a) to (c) xxx xxx xxx
the High Court may make such order in the case as it thinks fit:
XX XX XX XX XX In order to exercise the revisional power, the High Court may interfere with an order of any Court subordinate to it. 7. The first question for determination in this case is:- Whether the authority exercising the power under Section 26 of the Act is a Court and if it is answered in the affirmative, the next question that shall then fall for determination is: Whether such a court is subordinate to the High Court.
8. In the Code, the expression ‘Court’ has not been defined. One has, therefore, to fall back upon well established connotation of the term ‘Court’. Originally the term ‘Court’, meant, among other meanings, the Sovereign’s place; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the Sovereign. All tribunals, however, are not courts in the sense in which the term is usually employed, namely, to denote such tribunals as exercise jurisdiction over persons by reason of the sanction of the law and not merely by reason of voluntary submission to their jurisdiction. Thus, arbitrators, committees of clubs and the like, although they may be tribunals exercising judicial functions are not ‘courts’ in this sense of that term. On the other hand, a tribunal may be a court in the strict sense of the term although the chief part of its duties is not judicial. Parliament is a Court. Its duties are mainly deliberative and legislative; the judicial duties are only part of its functions. A coroner’s court is a true court although its essential function is investigation: Reference may be made to Halsbury’s Laws of England, Third Edition, Volume 9, Paragraph- 809, page 342:
9. In Brajnanda Sinha v. Joyti Narain AIR 1956 SC 66 the question was whether the Commissioner appointed under the Public Servants (Inquiries) Act, 1850 was a Court within the meaning of the Contempt of Courts Act, 1952. It observed that the definition of Court in Section 3 of the Evidence Act is not exhaustive but framed only for the purpose of that Act and is not to be extended where such an extension is not warranted. It quoted with approval the observation in Rex v. Electricity Commrs, 1924 1 KB 171 which is as under (at p. 70 of AIR):-
“An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so-called. Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of judicial power.”
After noticing some of its own decisions it observed that (at p. 70 of AIR 1956 SC 66):
“It is clear, therefore, that in order to constitute a Court in the strict sense of
the term, an essential condition is that the Court should have, apart from having some of the trapping of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.”
10. On this background, let us test the provisions of the Act, Section 26 of the Act reads thus:
“26. Notice of the dismissal or discharge:
(1) No employer shall dismiss or discharge or otherwise terminate the employment of any employee who had been in his employment continuously for a period of not less than six months, except for reasonable cause and after giving such employee at least one month’s notice or one month’s wages in lieu of such notice: Provided that……… Provided further that an employee who has been in continuous employment for a year or more and whose services are dispensed with otherwise than on a charge of misconduct shall also be paid compensation equivalent to fifteen days average wages for every completed year of service and any part thereof in excess of six months before his discharge in addition to the notice or pay in lieu of notice as prescribed above.
(2) Every employee, dismissed or discharged or whose employment is otherwise terminated, may make a complaint in writing in the prescribed manner, to a prescribed authority within 90 days of the receipt of the order of dismissal on one or more of the following grounds, namely:-
(i) there was no reasonable cause for dispensing with his service; or (ii) no notice was served on him as required by Sub-section (1); or (iii) he had not been guilty of any misconduct as held by the employer; or (iv) no compensation as prescribed in Sub-section (1) was paid to him before dispensing with his service. (3) xx xx xx xx xx (4) The prescribed authority may condone delay in filing such a complaint if it is satisfied that there was sufficient cause for not making the application within the prescribed time. (5) (a) The prescribed authority shall cause a notice to be served on the employer relating to the said complaint, record briefly the evidence adduced by the parties, hear them and after making such enquiry as it may consider necessary pass orders giving reasons therefor. (b) In passing such order the prescribed authority shall have power to give relief to the employee by way of reinstatement or money compensation or both. (6) The decision of the prescribed authority shall be final and binding on both the employee and employer." The term 'prescribed' has been defined in Section 2(11) of the Act as thus:- "2(11) "prescribed" means prescribed by rules made under this Act."
11. Section 4 of the Act vests the power to make rules in the State Government. In exercise of such rule making power the Bihar Shops and Establishments Rules, 1955 (hereinafter to be referred to as ‘the Rules’) have been framed. Rule 20(1) of the Rules enumerates a list of Acts which may be termed as misconduct and Sub-rule (2) thereof envisages that no order of discharge on ground of misconduct shall be made unless the employee concerned is informed in writing of the alleged misconduct and is given an opportunity to defend himself and explain the circumstances alleged
against him. Thereafter comes Rule 21 of the Rules which deals with the complaint under Sub-section (2) of Section 26. Rule 21(1) of the Rules reads thus:-
21(1). Any employee aggrieved by an order of dismissal or discharge under Section 26 may make a complaint to a Labour Court constituted under the Industrial Disputes Act, 1947 (14 of 1947) or to an officer authorised in this behalf by a notification in the official gazette, either himself or through an officer of registered trade union. Such Court or officer shall entertain the complaint petition and hear the same in the manner prescribed in Sub-rules (4) to (8).”
Sub-rules (2) and (3) deal with the form of memorandum and the court fee stamp to be affixed to such memorandum. Sub-rules (4) to (8) of the Rules need to be quoted in extenso:
“(4) The authority entertaining the complaint petition shall call upon the employer by a notice to appear on the date fixed before him either personally or through his agent at a specified time and place together with all relevant documents and witnesses, if any, and shall inform the complainant of the said date, time and place of the hearing of the said case.
(5) If the employer or his agent fails to appear on the date fixed at the specified time, and place, the authority may proceed to hear and determine the complaint petition ex-parte unless for proper reasons to be recorded in writing the hearing is adjourned to another date.
(6) If the complainant fails to appear on the date fixed or any date subsequent thereto to which the hearing may be adjourned for reasons considered proper, the authority may dismiss the complaint.
(7) An order passed under Sub-rule (5) or Sub-rule (6) may, on sufficient cause being shown within thirty days of the date of the order be set aside and the complaint reheard, notice being served on the opposite party of the date fixed for hearing.
(8) The Labour Court or the officer authorised in this behalf, as the case may be, shall record briefly the evidence adduced before him, hear the parties summarily and after making such further enquiries he may consider necessary, pass orders giving reasons therefor. The orders, so passed, shall be communicated to the parties immediately.”
12. Therefore, a complaint under Section 26 of the Act may be made to a Labour Court constituted under the Industrial Disputes Act, 1947 and the procedure regulating the trial and hearing or such complaints is prescribed in Sub-rules (4) to (8) of the Rules quoted above. The Labour Court has been defined in Section (2)(kka) of the Industrial Disputes Act to mean Labour Court constituted under Section 7 and Section 7 of the Industrial Disputes Act runs in these terms:-
“7. Labour Courts – (1) : The appropriate Government may, by notification in the official gazette constitute one or more Labour Courts for the adjudication of the Industrial Disputes relating to any matters specified in the Second Schedule and for performing such other functions as the case may be assigned to them under this Act.
(2) A Labour Court shall consist of one person only to be appointed by the appropriate Government.
(3) A person shall not be qualified for appointment as the Presiding Officer of a Labour Court, unless –
(a) he is, or has been, a Judge of a High Court; or
(b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or
(c) …………………
(d) he has held any judicial office in India for not less than seven years; or
(e) he has been the Presiding Officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years.”
13. It will thus be seen that a Labour Court consists of one person and has to be appointed by the appropriate Government and such a person who exercises the power of the Labour Court must have sufficient judicial training and experience as is required of any person holding the position of a High Court Judge or a District Judge or an Additional District Judge or a judicial office for not less than seven years. Section 7-C of the Industrial Disputes Act further lays down 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 (a) he is not an independent person, or (b) he has attained the age of sixty-five years. A Labour Court has to be presided over by an independent person having sufficient amount of judicial training and experience so as to act impartially as is required of a person holding a Court in the strict sense of the term. The person so appointed is a persona designata i.e. by name.
14. Let us consider, by applying the criteria laid down by the Supreme Court, whether the Labour Court as the prescribed authority under the Act can be held to be a Court.
15. The relevant provision of the Act and the Rules framed thereunder provide for filing of complaint, giving notice to the parties, power of the Labour Court to dismiss the complaint for default or to proceed to hear it ex-parte, to recall the order of dismissal or the order passed ex-parte, recording of evidence, hearing of the parties, giving relief for by passing an order, which may be passed by way of reinstatement or money compensation or both, and such order is made final and binding on both the employer and the employee. By recalling the observation of the Supreme Court in Brajanandan Sinha (AIR 1956 SC 66) quoted above, it must be held that the Labour Court, the prescribed authority under the Act is Court and that is the answer to the first question.
16. The next question that falls for determination is: whether the Labour Court which is a Court is subordinate to the High Court, because the revision under Section 115 of the Code shall be maintainable only if Labour Court is a Court subordinate to the High Court. A large number of decisions on this point were cited at the bar to show that although some tribunals and the authorities are not in the hierarchy of Courts it was held that such Tribunal or Authorities are Courts subordinate to the High Court.
17. In K. Parthasarathy Naidu Garu v. C. Koteswara Rao Garu AIR 1924 Madras 561 the question arose whether the orders of election tribunal consisting of District Judge or the Sub-Judge constituted under the Madras Local Board Act for deciding election petition were amenable to the re-visional jurisdiction of the High Court under Section 115 of the Code. I may notice that against the order which was impugned before the Madras High Court, no appeal lay. The Full Bench of the Madras High Court quoted with the approval the observation made in National Telephone Co. Ltd. v. Postmaster General 1913 AC 546 which is as under:-
“Whereby statute matters are referred to the determination of a Court of Record with no further provision, the necessary implication is, I think, that the Court will determine the matters, as a Court Its jurisdiction, is enlarged but all the incidents of such jurisdiction including the right of appeal from its decision, remain the same.”
In Mr. Dirji v. Smt. Goal in AIR 1941 Patna 65 a Full Bench of this Court held that the Commissioner appointed under the
Workmen’s Compensation Act, 1923 is a Court: whether it is a court subordinate to the High Court under Section 115 of the Code was left open. In Arjun Rautara v. Maharaja Krishna Chandra Gajpati AIR 1942 Patna I a Full Bench of this Court considered the question whether the Deputy Collector deciding a suit for recovery of arrears of mutation fee under the Orissa Tenancy Act was a court subordinate to the High Court within the meaning of Section 115 of the Code. It noticed that the appeal against the decree passed by the Deputy Collector lay before the District Judge. After referring Section 3 of the Code, the Full Bench held that Collectors hearing suits under the Orissa Tenancy Act are not Civil Courts but are subordinate within the provision of Section 115 of the Code.
18. I have noticed that in Mr. Dirji’s case, AIR 1941 Patna 65 the Full Bench left open the question whether a Commissioner appointed under the Workmen’s Compensation Act was a court subordinate to the High Court within the meaning of Section 115 of the Code. That case again came up before the High Court, and a Division Bench of this Court in AIR 1942 Patna 33, noticed that appeal against an order of the Commissioner under that Act lay before the High Court, the Commissioner, therefore, was subordinate to the appellate jurisdiction of the High Court. As it was subordinate to the appellate jurisdiction of the High Court, it was a court subordinate to the High Court within the meaning of Section 115 of the Code. In Abdul Razak v. Kuldip Narain AIR 1944 Patna 147, the matter considered by the High Court was the order passed by the District Judge nominated as Election Commissioner not as a persona designata under the Bihar District Board Election Petition Rules, 1939 framed under Bihar and Orissa Local Self Government Act, 1885. It appears that the matter was placed before the Division Bench of Chatterji and Meredith, JJ. There was difference between the two on some question but not whether Section 115 of the Code applied and that question was referred to Manohar Lal, J. Both Chatterji and Meredith, JJ. held that as the District Judge was not nominated as Election Commissioner as persona designata, but by office, his orders were amenable to the revisional jurisdiction of the High Court. In A. Hassan (AIR 1951 Patna 140) (supra) the Bench following the Full Bench decision of Mr Dirji (AIR 1941 Patna 65) (supra) held that the Authority under the Payment of Wages Act, 1936 is a Court and as appeal against its direction lay before the District Judge, it was a Court subordinate to the High Court within the meaning of Section 115 of the Code. In Takur Jugal Kishore Sinha v. The Sitamarhi Co-operative Bank Limited AIR 1967 SC 1494, the Supreme Court after noticing that certain disputes to be adjudicated by the Registrar under Section 48 of the Bihar and Orissa Co-operative Societies Act, 1939, observed as follows (at p. 1499 of AIR):-
“It will be noted from the above that the jurisdiction of the ordinary civil and revenue Courts of the land is ousted under Section 57 of the Act in the case of disputes which fell under Section 48. A Registrar exercising powers under Section 48 must, therefore, be held to discharge the duties which would otherwise have fallen on the ordinary civil and revenue Courts of the land. The Registrar has not merely the trappings of a Court but in many respects he is given the same powers as are given to ordinary Civil Courts of the land by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of Courts mentioned in Section 151 of the Code of Civil Procedure. In such a case there is no difficulty in holding that in adjudicating upon a dispute referred under Section 48 of the Act, the Registrar is to all intents and purposes, a Court discharging the same functions and duties in the same manner as a Court of law is expected to do”.
Whether the order of Registrar was revisable was not in issue. In Onkar Dutt Shastri v. Bihar Hindu Religious Trust Board, AIR 1960 Patna,. 164, it was held by a learned single Judge that under the Bihar Hindu Religious trust Act the appellate authority under Section 70 of the Act i.e. District Judge was a persona designala and not a Court; Section 115 of the Code does not apply against his order. I may notice that under that Act the District Judge by office is the appellate authority and order of the District Judge in appeal under Section 70(2) of that Act is final. The judgment in Onkar Dutt Shastri (supra) is against the teeth of the law laid down by the Supreme Court as well as by this Court and must be set aside.
19. I have already noticed that in A. Hassan (AIR 1951 Patna 140) (supra) not only it was held that the Authority under the Payment of Wages Act, 1936 was a Court but it also held that the order passed by the Authority was amenable to the re-visional jurisdiction of the High Court because appeal against the final order of the authority lies before the District Judge. So far the finding that the Authority under that Act was a Court, there cannot be any controversy; but whether that Authority is also a Court subordinate to the High Court in its revisional jurisdiction requires consideration. For holding that the Authority is amenable to the revisional jurisdiction of the High Court, the Division Bench relied in Mr. Dirji v. Smt. Goalin AIR 1942 Patna 33. In the case of A. Hassan (supra), the learned Judges of the Division Bench did not consider the distinction and its effect that the forum for appeal under the Workmen’s Compensation Act and the Payment of Wages Act is different in the former, it is High Court and in the latter, it is the District Judge.
20. From all the cases noticed above except the case of A. Hassan AIR 1951 Patna 140 (supra) it has been held that the Authority or the Tribunal or the Commissioner will be subordinate to the revisional jurisdiction of the High Court where against its order/direction appeal lies to the
high Court. The only case i.e. A Hassan (supra) in which it has been held that the Authority will be amenable to the revisional jurisdiction of the High Court although the appeal lies before the District Judge. In Thakur Das v. State of Madhya Pradesh, AIR 1978 SC 1, the question was whether the Sessions Judge acting as appellate authority under Section 6-C of the Essential Commodities Act, 1955 was amenable to the revisional jurisdiction of the High Court. It was held that as the Session Judge was designated as the appellate court and not as persona designate and as the Sessions court is constituted under the Code of Criminal Procedure, it is inferior criminal court in relation to the High Court; therefore, the order of the Session Judge is amenable to the revisional jurisdiction of the High Court. Merely because the authority or the Tribunal or the Commissioner is a court, on the ground alone it cannot be held to be subordinate to the revisional jurisdiction of the High Court either under the Code of Civil Procedure or the Code of Criminal Procedure. The order of such tribunal. Authority or Commissioner becomes revisable only if it is court within the hierarchy of a Civil Court or Criminal Courts. Only such tribunal, authority, Commissioner shall come within the hierarchy of Civil Courts or Criminal Courts when appeal against such tribunal or Commissioner or Authority lies to the High Court. If the appeal lies to the District Judge or the Session Judge, the authority or tribunal may be a court, but it goes to become a court in the hierarchy of Civil Courts or Criminal Courts. What becomes revisable is the order of the appellate authority i.e. the District Judge or the Sessions Judge. In my opinion, the case of A. Hassan so far it held that the Authority under the Payment of Wages Act was a Court subordinate to the revisional jurisdiction of the High Court has not been correctly decided. I am unable to agree with the decision of the Allahabad High Court in H.C.D. Mathur (AIR 1950 All 80) (FB) (supra)
21. In Anirudh Prasad Ambasta v. The State of Bihar 1990 Pat LR 1: AIR 1990
Patna 49 (FB), one of the questions which arose was whether the Tribunal constituted under Section 110 of the Motor Vehicles Act, 1939 is a Court, subordinate to High Court in its revisional jurisdiction. After noticing number of cases most of which have also been noticed above, the following principle was recorded (at p.57 of AIR):
“If it is a Court of Record then it is a Court in the hierarchy of Courts and where the District Judge or any Court in the hierarchy of Court is authorised to deal with particular matters not as a persona designata, it does not cease to be a Court in the hierarchy of Court. Such Court shall be subordinate to the High Court within the meaning of Section 115 of the Code. When a Commissioner for instance the Commissioner under the Workmen’s Compensation Act passes final order and there is a provision for filing an appeal before the High Court, then that Commissioner or Authority shall be a court subordinate to the High Court within the meaning of Section 115 of the Code. If appear against the order of a tribunal/authority lies to the District Judge/Sessions Judge, such tribunal/authority is not a Court subordinate to the High Court in its revisional jurisdiction.
22. In Imperial Tobacco Company Limited, Calcutta, Chemical Company Limited and Indian Tube Company Limited application under Section 115 of the Code as well as petition under Article 227 were filed. I have already noticed that this Court in those cases did not categorically hold that the Labour Court is amenable to the revisional jurisdiction of the High Court.
23. It is now necessary to decide whether in view of the law laid down in the different decisions noticed above, order of the Labour Court passed under Section 26 of the Act is amenable to the revisional jurisdiction of this Court. The relevant provision of the Act and the Rules have been noticed in extenso. There is no provision in the Act for filing any appeal before the High Court against an order passed under Section 26 of the Act. I may notice that there is a provision for filing an appeal under Section 28(7) of the Act read with Rule 24 of the Rules against an order on an application filed against deductions from wages etc. The forum is not the High Court or the District Judge, but before the Industrial Tribunal. That being the position, it must be held that although the Labour Court, prescribed authority under Section 26 of the Act, is a Court, but it is not a Court subordinate to the High Court in its revisional jurisdiction under Section 115 of the Code. This answers the second question.
24. In view of the answer to the second question, it must be held that this civil revision application is not maintainable. It is dismissed without costs.
25. During the course of bearing, we were informed that writ petition has also been filed by the petitioner and that is pending. It is needless to say that since we have not expressed any opinion on the merit of the case, the dismissal of the civil revision application shall be of no effect so far the writ petition is concerned.
B.P. Singh, J.
26. I agree.
N.S. Rao, J.
27. I also agree.