Fazl Ali, J.:— The question which has been referred to the Full Bench is whether a Commissioner appointed under the Workmen's Compensation Act (who will for the sake of brevity be hereinafter referred to as the Commissioner) is a Court.

The word “Court”, as has been pointed out in Halsbury's Laws of England, originally meant the King's palace, but has also acquired the meaning of (1) a place where justice is administered and (2) the person or persons who administer justice. What we have to find is what are the essential attributes or characteristics of a Court when the expression is used in the latter sense. On this point we can get very little assistance from the definitions of “Court” which are to be found in the English statutes, though according to Stroud's Judicial Dictionary the expression has been defined in no less than eighty Victoria statutes alone. In the Indian Evidence Act, which is the only Indian statute in which the expression is intelligibly defined, it is stated that for the purpose of the Act

“a Court includes all Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence.”

This definition also is by no means exhaustive and as was pointed out in Queen-Empress v. Tulja it was framed only for the purpose of the Act itself and should not be extended beyond its legitimate scope. We have, therefore, to investigate the point for ourselves independently of the Indian Evidence Act or any other Act.

I think that it may be stated without any risk of contradiction that in order to be a Court the person or persons who may be said to constitute it must be entrusted with judicial functions. Judicial function means the function of “deciding litigated questions according to law”—deciding them not arbitrarily but on evidence and according to certain rules of procedure which ensure that the person, who is called upon to decide them, acts with fairness and impartiality. It is often said that two of the important features of a Court are (1) that the proceedings before it are normally conducted in public and (2) that it is conducted in the presence of the parties concerned. In Queen-Empress v. Tulja West, C.J pointed out that “it is the object to which an enquiry before a Judge is directed which determines the nature of it” and added that an enquiry is judicial if the object of it is to determine a jural relation between one person and another or a group of persons or between him and the community generally. The expression “jural relation”, it is needless to say, is a very comprehensive term and includes rights and liabilities and also a number of other matters. Again, in Nataraja Iyer, In re, Sundara Ayyar, J. observed as follows:—

In Rex v. Woodhouse the test (of a Court) adopted appears to be whether there was a his before the officer. * * * It is not necessary that there should be two parties arrayed as opponents in the matter to be decided by the officer, * * * Suppose a trustee or a guardian of an infant makes an application to a Court for leave to sell certain properties of the beneficiary or the ward. There might not be any respondent in the application; yet it cannot be doubted that the order passed would be that of a Court.”

It is evident that a Court cannot function properly unless it is armed with certain powers, such as the power to receive evidence bearing on the matter which it is called upon to decide, the power to enforce the attendance of witnesses and the production of documents and material objects before it and “the power to pronounce judgment and carry it into effect between the person and parties who bring a case before it for decision (See Bouvier's Law Dictionary). Thus a Court must not only be charged with judicial function but must also be invested with judicial powers.

Another important feature of a Court is that it exercises jurisdiction over persons by reason of the sanction of the law and not merely by reason of voluntary submission to such jurisdiction. Properly speaking, the Courts are created only by the authority of the sovereign power as the fountain of justice, such authority being exercised either by Statute, Charter, Letters Patent or Order in Council. It was suggested before us on behalf of the respondent that the Indian legislature cannot create a new Court, but the matter is now concluded by the decision of the Full Bench in Parmeshwar Ahir… v. Emperor…Opposite Party. in which it has been held that the Governor-General in Council has power to create new Courts of justice and to limit the jurisdiction of the existing Courts. The learned Judges who decided the case cited in support of their view the decision of the Privy Council in Empress v. Burah where it was held that the Indian Legislature has powers expressly limited by the Act of the Parliament which created it, but has, when acting within those limits, plenary powers of legislation as large and of the same nature as those of Parliament itself.

Now, I do not pretend that the tests I have laid down above are exhaustive, but I believe that if a tribunal satisfies all those tests, it will be difficult to hold that it is not a Court. I will, therefore, refer to some of the provisions of the Workmen's Compensation Act before answering the question which has been referred to us for decision.

Section 19, clause (1), of the Act lays down that—

“If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, default of agreement, be settled by a Commissioner.’

In construing section 19 some of the High Courts have pointed out that it is a condition precedent to the jurisdiction of the Commissioner that a question should have existed at the time of the proceedings before him either as to the employer's liability to pay compensation or as to the amount and duration of such payment. This in my opinion fully satisfies the test laid down by Sundara Ayyar, J. that there must be a lis before a tribunal.

Section 23 lays down that the Commissioner shall have all the powers of the Civil Court under the provisions of the Code of Civil Procedure for the purpose of taking evidence on oath and enforcing the attendance of witnesses and compelling the production of documents and material objects.

Section 24 enables the parties to the proceedings before the Commissioner to be represented by a legal practitioner.

Section 25 enjoins the Commissioner to make a brief memorandum of the substance of the evidence of every witness as the examination of the witness proceeds.

Section 26 empowers him to award costs incidental to any proceedings before him.

Section 27 enables him to submit any question of law for the decision of the High Court and further lays down that when such question of law has been submitted, he must decide it in conformity with the decision of the High Court.

Section 30 provides for appeals to the High Court from the order of the Commissioner in certain cases.

Section 31 gives him power to enforce his judgment by enabling him to recover as an arrear of land revenue any amount payable by any person under the Act.

These sections are supplemented by certain rules which must be read as part of the Act. Under these rules if an application before the Commissioner is to be heard, it must be heard after notice to the opposite party and the opposite party may file a written statement. The Commissioner thereupon is to frame issues and in framing those issues he has to distinguish those which concern points of fact from those which concern points of law. He is authorised to postpone the hearing of the case after recording the reasons necessitating the postponement and at the end of the hearing he has to record concisely in his judgment the finding on each of the issues framed and the reasons for such finding. He has also at the time of signing and dating his judgment to pronounce his decision and thereafter no addition or alteration is to be made in the judgment other than the clerical or arithmetical mistakes arising from any accidental slip or omission he has power to make a local inspection, but he must do so after notice to the parties and after making a local inspection, he is to record briefly in a memorandum any facts observed by him and he has to show the memorandum to any party which desires to see the same.

In my judgment these provisions clearly show that the matters which are set out in section 19 of the Act have to be decided by the Commissioner judicially and while deciding them he is performing a judicial function. The Commissioner moreover derives his authority from a Statute passed by a competent authority and in exercising his jurisdiction he has the sanction of the law behind him. Section 3 of the Act provides that in certain cases where a workman has alternative remedies, he will have to elect whether to proceed before the Civil Court or before the Commissioner. This provision emphasises the fact that the Act has created a special tribunal for the benefit of certain class of workmen and that the latter can resort to it for relief in certain cases in which only the Civil Court could grant relief before the Act. Again the fact that an appeal has been provided to the High Court from certain orders of the Commissioner, confirm the view that in passing those orders the Commissioner acting as a Court and not in any other capacity. Thus I have no hesitation in holding that the Commissioner is a Court.

I will now briefly deal with the certain arguments which were advanced by Mr. Choudhury (learned advocate for the respondent) to show that the Commissioner is not a Court.

It was contended in the first place that the Commissioner is a persona designata in the sense in which the expression has been used in some reported cases for the purpose of deciding certain disputes between workmen and their employers and is, therefore, not a Court. The decision which was mainly relied on in this connection was that of The Municipal Corporation of Rangoon v. M.A Shakur. In that case it was held that the Chief Judge of the Rangoon Small Cause Court in performing the functions assigned to him by section 14 of the Rangoon Municipal Act acts as a persona designata and not as a Court and that the High Court had no jurisdiction either under section 115 of the Code of Civil Procedure or under section 107 of the Government of India Act to interfere in revision with his decision. Reference was made in this case to a number of decisions in which the expression persona designata has been used to illustrate what is meant by the expression. The first case which was referred to was Balaji Sakharam v. Merwanji Nowroji. That was a case concerning a Municipal election in the Bombay Presidency which was sought to be set aside under section 23 of the Bombay District Municipal Act Amendment Act (II of 1884), the wording of which is similar to the wording of section 15 of the Rangoon Municipal Act. Under the former Act the District Judge was the person to whom an application had to be made for setting aside an election held in the district and he after enquiry was authorised to pass orders confirming, amending or setting aside the election. There was a provision in the Act that for the purposes of the enquiry he might exercise any of the powers of the Civil Court and that his decision was to be conclusive. Chief Justice Farran and Mr. Justice Parsons held, following an earlier decision of their own Court, that the High Court had no jurisdiction to revise an order setting aside an election under the Act (II of 1884). They held that a District Judge was not a Court within the meaning of section 622 of the Civil Procedure Code, but was merely a persona designata.

Another case which has been referred to by the learned Judges of the Rangoon High Court is that of Vasudeva Aiyar v. The Negapatam Devasthanam Committee in which Sir Arnold White, C.J, after referring to Balaji Sakharam v. Merwanji Nowroji, observes as follows:—

“The Chief Justice and Parsons, J. were of opinion that a District Judge acting under section 23 of the Bombay District Municipal Act Amendment Act, 1884, is not a Court within the meaning of the word in section 622 of the old Civil Procedure Code. They suggest that he was a persona designata apparently for a specific purpose. That seems to be so. It seems to me that under the Act in question the District Judge is a persona designata for a specific purpose and not an officer exercising judicial functions under the Act. As regards the Religious Endowments Act, it is clear that for the purpose of several sections of the Act the District Court is not a persona designata but a Civil Court exercising jurisdiction under the Act.”

This view was affirmed in Balakrishna Udayar v. Vasudeva Ayyar by their Lordships of the Privy Council who observed as follows:—

“Surely in such a question as the amotion of an officer from his office for misconduct or unfitness, the Court which makes the order removing him is exercising judicial functions * * * *.”

It appears to their Lordships to be clear that in all these matters the Civil Court exercises its powers as a Court of Law, not merely as a persona designata whose determinations are not to be treated as judgments of a legal tribunal.

In legal phraseology ‘persona designata’ means a person indicated in a statute or legal instrument (such as a will, etc.) not by name but either by official designation or as one of a class (such as “my heir at law”). In some of the Indian Statutes special powers have been delegated to certain officers of the Court who are referred to therein by their official designation, such as the District Judge, the Chief Judge of the Small Cause Court, etc. The question which has to be asked in such cases is whether the person so designated has been invested with the powers as a Court or otherwise. If he is invested with the powers as a Court, the necessary implication is that the jurisdiction of the Court is enlarged and its decision is subject to all the incidents of such jurisdiction [See National Telephone Company, Limited v. Post Master General]. If the powers are conferred on him not as a Court, he is a mere persona designata and his decision will not be subject to the incidents of such jurisdiction as the Court ordinarily exercises.

It seems to me, therefore, that there is no real antithesis between the expressions “persona designata” and “Court”, or in other words, even a persona designata may be a Court. Whether he is a Court or not depends upon his powers and the functions which he has to discharge. It is not inconceivable that in some cases when an officer of the Court, say the District Judge, is called upon to decide a certain matter not as a District Judge, but as a persona designata, he may still be a Court by reason of some special provision in the Statute which authorises him to decide the matter. The Statute may expressly say that he will be deemed to be a Court or that his decision will be subject to appeal or revision by a superior Court.

Now, if we carefully examine the cases referred to by the Rangoon High Court we shall find that in all those cases the direct question which had to be decided was whether when certain judicial or quasi judicial functions are delegated to an officer ordinarily subject to the revisional powers of the High Court, he is or is not, with reference to the delegated powers, necessarily subject to its revisional authority. We shall also find that in the majority of cases it was not expressly decided that the persona designata was not a Court generally speaking; but that he was not a Court in the sense in which the expression has been used in section 622 of the old Code or section 115 of the new Code, that is to say, he was not a Court subordinate to the High Court.

It seems to me also that the expression ‘persona designata’ cannot be appropriately used with reference to a Commissioner appointed under the Workmen's Compensation Act because the Act itself does not single out any person by his official designation to be appointed as a Commissioner nor does it say that only an official can be appointed as a Commissioner. What it says is that “the Provincial Government may by notification in the official gazette appoint any person to be a Commissioner for such local area as may be specified in the notification”. The person sc appointed may be an official such as the Deputy Commissioner or the District Judge in which case we may call him a persona designata if we so choose; or he may be a private individual holding no office whatever at the time of his appointment. I think that it will be most illogical to say that in the former case he is not a Court, because he is a persona designata and in the latter case he may be a Court because he is not a persona designata. The points to be remembered are (1) that the Act itself does not designate an official to be the Commissioner and (2) that whether the Commissioner is a Court or not depends on the powers conferred on him by the Act and not on who is the person who happens to be selected for appointment by the Provincial Government.

It was also contended by Mr. Chaudhury that merely because a Commissioner exercises certain judicial functions, it does not necessarily follow therefrom that he is a Court and reliance was placed in this connection upon a number of decisions in which it has been held that the Collector in making an award under the Land Acquisition Act and a Manager dealing with a claim under the Chota Nagpur Encumbered Estates Act cannot be deemed to be a Court notwithstanding the fact that the respective Acts under which they act authorise them to act on the evidence. Now the grounds on which the Collector in making an award under the Land Acquisition Act has been held not to be a Court have been clearly set out by the Calcutta High Court as well as by the Judicial Committee of the Privy Council. In dealing with the matter the Calcutta) High Court in Ezra v. Secretary of State for India pointed out that the Collector in making the award acts as a mere departmental officer or an agent of the Government for the purpose of ascertaining the value of the property to enable a tender to be made to the owner of the land to be acquired and in that view he has to consider all the available information on the point which is collected before him in the form of evidence. The Privy Council dealt with the same matter as follows:—

“When the sections relating to this matter are read together, it will be found that the proceedings resulting in this ‘award’ are administrative and not judicial; that the ‘award’ in which the enquiry results is merely a decision (binding only on the Collector) as to what sum shall be tendered to the owner of the lands, and that, if a judicial ascertainment of value is desired by the owner, he can obtain it by requiring the matter to be referred by the Collector to the Court.”

Reference may also be made in this connection to the decision of a Special Bench of this Court in Jagarnath Lall v. The Land Acquisition Deputy Collector, Patna in which a number of authorities on the subject have been reviewed.

Similarly, the Manager appointed under Chota Nagpur Encumbered Estates Act cannot be designated as a Court because in determining how much is to be paid to any particular creditor of the estate, he is acting merely as a representative of the estate and not as an independent tribunal. It is elementary that a person cannot be a Judge in his own cause (aliquis non debet esse judex in propria causa) and therefore any decision which may be arrived at by the Manager cannot properly be regarded as the decision of a Judge or Court.

In Halsbury's Laws of England it has been pointed out—

“Many bodies are not courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees, the court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benches of the Inns of Court when considering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man.”

The same remarks apply to some extent to commissions of enquiry whose duty is merely to report and not to decide matters referred to it. The position, however, of the Commissioner under the Workmen's Compensation Act is different because he constitutes an independent tribunal and his function is to judge and decide and not merely to enquire and advise, and in judging or deciding the matters before him he has to proceed judicially and not arbitrarily. In short he satisfies all the main tests which one has to apply for determining whether a tribunal is a Court or not.

The learned Advocate for the respondent also drew our attention to section 23 of the Workmen's Compensation Act which provides that the Commissioner shall have all the powers of a Civil Court under the Civil Procedure Code for the purpose of taking evidence on oath and he shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXXV of the Criminal Procedure Code. It was contended by him that if the Commissioner was a Court, it was unnecessary to say that he shall be deemed to be a Court for certain purposes and that he should have all the powers of a Court for others. There is no doubt that such an argument has been allowed to be raised in some cases, but in my view it can be of no avail to the respondent in the present case, because a careful examination of the Act shows that apart from this section the Commissioner satisfies all the requirements of a Court. The provisions made in section 28 may have been made either ex abundanti cautela or to avoid the necessity of incorporating in the Act a large number of provisions like, those to be found in the Civil Procedure Code or because the framers of the Act wanted to emphasise that for the purpose mentioned in the section the Commissioner shall be regarded as a Civil Court. However that may be, the mere fact that it has been expressly stated that the Commissioner will have the powers of a Civil Court, cannot by itself justify the inference that he is not a Court. The same observations will apply to the provisions made in section 22, clause (4), to the effect that the Commissioner shall be deemed to be a public servant within the meaning of the Indian Penal Code.

Lastly, it was urged that a reference to section 8(5) shows that the Commissioner has absolute discretion in apportioning among the dependants of the deceased workman in such proportion, as he thinks fit, the compensation deposited in respect of the workman. It was contended that he cannot be deemed to be a Court, because at least in this matter he is not called upon to decide any question, but merely to exercise his discretion. The clear answer to this argument is furnished by section 30, clause (c), which provides that an appeal lies to the High Court from the order of the Commissioner providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such a dependant. This shows that the discretion must be exercised judicially and not arbitrarily.

In the result I would hold that a Commissioner appointed under the Workmen's Compensation Act is a Court. But in answering this question I would make it clear, as we are asked to do so by the learned Advocate for the respondent, that the question as to whether the Commissioner is a Court subordinate to the High Court in the sense in which the expression is used in section 115 of the Civil Procedure Code was not argued before us and we accordingly do not propose to decide it.

Harries, C.J:— I entirely agree.

Manohar Lall, J.:— I agree.

S.A.K

Answer accordingly.