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PETITIONER: STATE OF ASSAM

       Vs.

RESPONDENT: HORIZON UNION & ANR

DATE OF JUDGMENT: 23/09/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. DAYAL, RAGHUBAR RAO, K. SUBBA (CJ) HIDAYATULLAH, M. SIKRI, S.M.

CITATION:  1967 AIR  442            1967 SCR  (1) 484  CITATOR INFO :  RF         1990 SC2072  (44)

ACT: Industrial Disputes Act (14 of 1947), ss. 7A(3) (aa),  7A(3) (b)--Additional  District Judge, officiating  as  Registrar, High Court, if qualified-Labour Court if Tribunal within  s. 7A(3)(b).

HEADNOTE: The  High  Court  quashed  the  appointment  of  the  second respondent as Presiding Officer of an Industrial Tribunal on the ground that he was not an Additional District Judge  for three  years as -required by s. 7A(3)(aa) of the  Industrial Disputes Act.  In appeal to this Court,, the appellant-State contended  that  though  the  respondent  did  not  work  as Additional  District  Judge, for the full  period  of  three years  he satisfied the -requirement of the section,  since, while officiating as Registrar of the High Court he held the office of an Additional District Judge. HELD  :  The  second  respondent  was  duly  qualified   for appointment  under s. 7A(3)(aa) of the  Industrial  Disputes Act.  To satisfy the requirements of the section it was  not necessary  that the person must have actually worked  as  an Additional District Judge for that period. [487 B] Section 7A(3)(aa) inserted by the Central Act prevails  over cl.  (aa)  of  s.  7A(3)  of  the  Assam  Amendment  to  the Industrial  Disputes  Act  and  it  does  not  require   any consultation with the High Court regarding appointment to  a Tribunal. [487 D-E] Though the respondent was the Presiding Officer of a  Labour Court  he was not qualified otherwise for appointment  under s.  7A(3), because a Labour Court is not a  Tribunal  within the meaning of s. 7A(3) (b) read with s. 2(r). [488 B]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1565  of 1966.

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Appeal  by special leave from the judgment and  order  dated June 2, 1966 of the Assam and Nagaland High Court at Gauhati in Civil Rule No. 7 of 1966. M. C. Setalvad and Naunit Lal, for the appellant. D. Goburdhan, for respondent No. 1. S. N. Prasad, for respondent No. 2. The Judgment of the Court was delivered by Bachawat,  J.  This  appeal  by  special  leave  raises  the question  whether  respondent No. 2, Shri B.  C.  Dutta  was qualified  for  appointment as the Presiding Officer  of  an Industrial Tribunal under s.  7A(3) of the Industrial Disputes Act, 1947.  Section  7A inserted 485 in  the Industrial Disputes Act, 1947 by Act No. 36 of  1956 with effect from March 10, 1957 read as follows :- "7A  (1) The appropriate Government may, by notification  in the  Official  Gazette, constitute one  or  more  Industrial Tribunals  for  the  adjudication  of  industrial   disputes relating  to  any matter, whether specified  in  the  Second Schedule or the Third Schedule. (2)  A  Tribunal  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 Tribunal unless- (a) he is, or has been a judge of a High Court; or (b)  he has held the office of chairman or any other member  of the Labour Appellate Tribunal  constituted  under the  Industrial Disputes (Appellate Tribunal) Act, 1950,  or of any Tribunal, for a period of not less than two years." Assam  Act  No. 8 of 1952 which received the assent  of  the President  on April 25, 1962 inserted in s. 7A(3) after  cl. (a), the following clause :- "(aa) he has worked as a District judge or as an  Additional District  judge  or as both for a total period of  not  less than three years or is qualified for appointment as a  judge of a High Court; Provided  that the appointment to a Tribunal of  any  person qualified  under  this  clause shall  not  be  made  without consultation with the Assam High Court; or". In  1964,  the  Parliament passed  the  Industrial  Disputes (Amendment)  Act  (No.  36  of  1964).   This  amending  Act inserted in s. 7A(3 after cl. (a) the following clause "(aa)  he  has, for a period of not less than  three  years, been a District judge or an Additional District judge; or". By an order of the State Government dated December 7,  1965, Shri Dutta was appointed the Presiding Officer of the Indus- trial  Tribunal,  Assam Gauhati.  Respondent No. 1  filed  a writ  petition  in  the Assam High  Court  challenging  this appointment.  The High Court quashed the appointment on  the ground that Shri Dutta lacked the qualification required  by s.  7A(3).   Counsel for the State of Assam  submitted  that Shri  Dutta had been an Additional District Judge  for  over three years, and was,, therefore, 486 qualified   for  appointment.   This   submission   involves consideration  of  the question whether  Shri  Dutta,  while working  as  Registrar  of the Assam High  Court,  held  the office of an Additional District Judge. The  Assam Judicial Service (Senior) Rules, 1952  show  that the  strength of the Assam Judicial Service (Senior) and  of each kind of post therein is as follows      "Senior Grade I      Registrar         ...    ...     ...    ...      District Judges   ...    ...     ...     3

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    Senior Grade II.      Additional District Judges    3.91 The Governor has power to increase the cadre by the creation of     additional    permanentor     temporary     posts.The post  of  Registrar  is  filled  up  by  the  Chief  Justice preferably  from Grade 1 or Grade 11 of the Service.   Other posts  in  the  cadre  are filled  up  by  the  Governor  in consultation with the High Court. On August 16, 1954, Shri Dutta, then Officiating Subordinate and  Assistant  Sessions Judge, was  appointed  a  temporary Additional  District  .  & Sessions  Judge.   While  he  was officiating  as an Additional District Judge,  his  services were lent by the State Government to the High Court, he  was temporarily promoted to Senior Grade 1 and on March 8,  1957 was  appointed by the Chief Justice as the Registrar of  the Assam  High Court.  It is not disputed that  between  August 16, 1954 and March 8, 1957 Shri Dutta held the office of  an Additional  District  Judge.  The record  shows  that  until April 24, 1958 the Government continued to retain Shri Dutta in  his  office  of  Additional  District  Judge.   On  this footing,  the Government passed an order on March 26,  1958, whereby  Shri Dutta, then Officiating Registrar of the  High Court,  was  confirmed in Senior Grade 11 with  effect  from February 16, 1957. On April, 24, 1958, he was confirmed in Senior Grade I  with effect from May 2, 1957.  On June 30, 1959, he retired  from the  office of the Registrar.  The High Court was  right  in saying that under the Assam Judicial Service (Senior) Rules, 1952 the post of the Registrar was separate from that of the District  Judge and Shri Dutta never held the office of  the District  Judge.   But the High Court  omitted  to  consider whether  he  continued to hold the office of  an  Additional District  Judge after March 8, 1957.  We are satisfied  that during  the period from March 8, 1957 up to April 24,  1958, Shri  Dutta,  while officiating as a Registrar of  the  High Court,  continued  to  hold  the  office  of  an  Additional District  Judge.   The High Court was in error  in  thinking that in 487 order to satisfy the conditions of s. 7A(3)(aa), Shri  Dutta should have actually worked as an Additional District  Judge for  a period of not less than three years.  For over  three years  Shri  Dutta held the post of an  Additional  District Judge.   Consequently,  during this period he  had  been  an Additional  District Judge as required by s. 7A(3)(aa).   To satisfy  the  requirements  of  s.  7A(3)(aa)  it  was   not necessary that he must have actually worked as an Additional District Judge for this period. The  appointment of Shri Dutta as the Presiding  Officer  of the  Industrial Tribunal was made without consultation  with the   High   Court.   Respondent  No.  1   submitted   that, consequently, there was no compliance with the proviso to s. 7A(3)(aa)  inserted  by  Assam  Act No.  8  of  1962.   This contention  has no force.  In respect of the  subject-matter of  the appointment of a person who has for a period of  not less than three years been a District Judge or an Additional District  Judge, cl. (aa) inserted by Central Act No. 36  of 1964 impliedly repealed cl. (aa) inserted by the Assam  Act. Clause (aa) inserted by the Central Act is intended to be an exhaustive  code  in respect of  this  subject-matter.   The Central Act now occupies this field.  The provisions of  cl. (aa) inserted by the Assam Act on this subject are repugnant to  cl. (aa) inserted by the Central Act and by Art. 254  of the Constitution, to the extent of this repugnancy, is void. Clause (aa) of s. 7A(3) inserted by the Central Act does not

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require any consultation with the High Court. It  follows that Shri Dutta was duly qualified for  appoint- ment  under  s. 7A(3)(aa), and the order of the  High  Court must be set aside. We may add that in respect of the subject of appointment  of a  person who is qualified for appointment as a Judge  of  a High Court, clause (aa) inserted by Assam Act No. 8 of  1962 including its proviso continues to be in force.  But counsel for  the  State  of  Assam  did  not  seek  to  justify  the appointment  of  Shri Dutta under cl. (aa) inserted  by  the Assam Act. It appears that before December 7, 1965, Shri Dutta had been the Presiding Officer of a Labour Court for over two  years. Counsel  for Shri Dutta submitted that he,  therefore,  held the  office of a member of a Tribunal and was qualified  for appointment  under s. 7A(3)(b).  There is no force  in  this contention.  Section 2(r) defines   ’Tribunal’.  It reads : "Tribunal"  means an Industrial Tribunal  constituted  under section  7A and includes an Industrial Tribunal  constituted before the 10th day of March,, 1957 under this Act." 16Sup.  C. I./66-3 488 Obviously,  the  first  part of the definition  in  s.  2(r) cannot be fitted in s. 7A(3)(b).  The expression  ’Tribunal’ in  s.  7A(3)(b), therefore, means "an  Industrial  Tribunal constituted  before the 10th day of March, 1957  under  this Act." Thus, a person who held the office of the Chairman  or any other member of an Industrial Tribunal constituted under s.7  as  it  stood before March 10, 1957  is  qualified  for appointment under s.7A(3)(b),though he may   not          be qualified otherwise for appointment under s. 7A(3).   But  a Labour  Court  is not a Tribunal within the  meaning  of  s. 7A(3) (b) read with s. 2(r).  Shri Dutta was, therefore, not qualified for appointment under s.7A(3)(b). In  the  result, the appeal is allowed with  costs  against, respondent No. 1, the order of the High Court is set  aside, and the writ petition is dismissed. Y.P.                         Appeal allowed. 489