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PETITIONER: STATESMAN (PRIVATE) LTD.

       Vs.

RESPONDENT: H.   R. DEB & ORS.

DATE OF JUDGMENT: 02/04/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) RAMASWAMI, V. VAIDYIALINGAM, C.A. HEGDE, K.S. GROVER, A.N.

CITATION:  1968 AIR 1495            1968 SCR  (3) 614  CITATOR INFO :  RF         1970 SC 694  (6)  E          1976 SC2283  (12)  RF         1988 SC 404  (6)  RF         1992 SC1213  (24)

ACT: Industrial  Disputes  Act (14 of 1947), ss. 7(3)(d)  and  2- "Judicial Office", if includes Office of Magistrate-Writ  of Quo Warranto-Insuance.

HEADNOTE: Section  7(3)  (d) of the industrial Disputes  Act  provides that  no  person shall be qualified for appointment  as  the presiding officer of a Labour Court, unless he has held  any judicial  Office for not less than seven years.  Since  1940 the first respondent held the Office of Sub-Deputy Collector and  was  vested with Magisterial powers.  In  1959  he  was appoint the presiding officer of a Labour Court and he  gave an  award against the appellant.  The  appellant  questioned the appointment on the ground that the first respondent  had not  held  ’judicial  office’  for  7  years  prior  to  his appointment. HELD : A Magistrate holds a judicial office.  That his dudes are  partly  judicial and partly other does not in  any  way detract from the position that while acting as a  Magistrate he  is a judicial officer.  An office means no more  than  a position  to  which certain duties are attached.   A  public office is one which entities a man to act in the affairs  of others without their appointment or permission.  The  office of  a Magistrate is a correct expression in English  and  in law.   The  word ’office’ has been applied  to  Magistrates. The Judicial Officers Protection Act, is intended to protect not Civil Judges alone but also Magistrate. [620 F-621 C]. The  functions  of  a  Labour  Court  are  of  great  public importance and quasi civil in nature.  Men of experience  on the   civil  side  of  the  law  are  more   suitable   than Magistrates.  Persons employed on multifarious duties and in addition  performing some judicial functions may  not  truly answer the requirement of s. 7. For it cannot be denied that

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the  expression "holding a judicial office"  signifies  more than  discharge  of judicial functions  while  holding  some other office.  The phrase postulates that there is an office and  that  office is primarily judicial.  In this  case  the distinction  was  unsubstantial because the  Magistrate  was holding  a fixed position for nineteen years and  performing functions primarily of judicial character. [622 B-D]. Even if there be some doubt that is to be resolved in favour of  upholding  the  appointment  on  the  ground  that   the legislature   itself   by  s.  9  contemplates   that   such appointments  should not be called into question.   Although the provisions of s. 9 cannot shut out an inquiry (if  there is  a  clear  usurpation)  for purposes of  a  writ  of  quo warranto  at  least in an. unclear case the  intent  of  the legislature is entitled to great weight.  The High Court  in a  quo warranto proceeding should be slow to pronounce  upon the matter unless there is a clear infringement of the  law. [621 D-F].

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 647 of1967. 615 Appeal from the judgment and order dated January 5, 1967  of the  Calcutta High Court in Appeal from Original  Order  No. 1.34 of 1966. Sachin  Chaudhuri,  J.  K. Ghosh and D. N.  Gupta,  for  the appellant. S.   C. Mazumdar and A. K. Mitter, for respondent No. 2. B.   Sen,  G. S. Chatterjee for P. K. Bose,  for  respondent No. 3. The Judgment of the Court was delivered by Hidayatullah, C.J. This appeal on certificate arises from  a petition  under Art. 226 of the Constitution of India  filed in  the  High  Court  at  Calcutta  by  the  appellant,  the Statesman  Private Ltd.  This company prints  and  publishes daily and weekly newspapers and undertakes general  printing work  at Calcutta.  By that writ petition the Company  asked for  a writ of certiorari against the Second  Labour  Court, West  Bengal with a view to quashing an award, 21  September 1960,  reinstating one Sheikh Kaloo, one of  its  employees. The  Company had dismissed the said Kaloo after  holding  an inquiry   but   the   Second  Labour   Court   ordered   his reinstatement with half wages for the period of his  ’forced unemployment’.   The  writ  petition  was  heard  by  B.  N. Banerjee  J.  and  by  his order,  15  February,  1962,  the petition  was  granted  and the order of  the  Tribunal  was quashed.   The workmen who had sponsored the case  of  Kaloo appealed in the High Court.  During the course of the appeal an  application  was filed by the Company stating  that  the Tribunal presided over by Mr. H. R. Deb was not qualified in law   to  adjudicate  upon  the  dispute  inasmuch  as   the appointment of Mr. Deb was in violation of the provisions of S. 7 (3) (d) of the Industrial Disputes Act, 1947.  On  June 16,  1964  by  another  affidavit  the  particulars  of  the services of Mr. Deb were stated to show that Mr. Deb had not held a ’judicial office’ in India for not less than  7 years and  as this was a condition precedent his  appointment  was illegal  and  the  award made by him  was  a  nullity.   The Company  stated  that this was, so held  in  another  matter (Matter No. 120/1961 decided on July 28, 1965 between  Shree Hanuman  Foundries v. H. R. Deb and others.  The appeal  was heard and allowed and the order of B. N. Banerjee J. was set aside  but liberty was given to the Company, on terms as  to

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costs, to amend the original petition and the learned  Judge was  directed  to hear and determine the  amended  petition. The amendment was effected on August 5, 1964.  On  September 3,  1964  the  Divisional Bench in  Hanuman  Foundries  case delivered judgment.  Two separate judgments were  delivered. Bachawat J. held that the provisions of S. 7 (3) (d) of  the Industrial  Disputes Act were directory while Basu, J.  held them  to be mandatory.  Bachawat J. also held that  even  if the appointment 616 of  Mr.  Deb  was  not regular, the  doctrine  of  de  facto determination   by   a   Court   apparently   possessed   of jurisdiction applied and the order could not be  questioned. Basu J. held to the contrary.  The matter was then  referred to Sinha J. (as he, then was) who held that (a) Mr. Deb  had not   held  judicial  office  for  7  years  prior  to   his appointment;  (b)  that  s.  7 (3)  (d)  of  the  Industrial Disputes Act was mandatory; (c) a writ of quo warranto  must therefore issue, against him; (d) that the de facto doctrine applied;  and (c) proceedings for a writ of  certiorari  was collateral and, therefore, not available to quash the  award of Mr. Deb. The  case of Hanuman Foundries as decided by the Full  Bench was followed in the present writ petition by B. C. Mitra  J. on  June 6, 1966 and the writ petition was  dismissed.   The Company  appealed  against the judgment of B.  C.  Mitra  J. Sinha  C.J.-  and A. K. Mookerjee J. dismissed  the  appeal, January  5, 1967 but ,-ranted a certificate and this  appeal is the result. Although  this  appeal is quite separate  from  the  Hanuman Foundries  case,  the  decision in that  case  was  the  one canvassed  before  us.  After hearing the arguments  in  the case  we  are  satisfied that the appeal must  fail  on  the ground  that Mr. Deb was competent to exercise  jurisdiction and  his appointment cannot be called in question.  In  this view  of  the  matter  the  very  interesting  and   learned discussion  of the de facto doctrine need not detain us  and we express no opinion about it. The question falls to be considered on the words and  scheme of s. 7 and some other sections.  To approach the problem we may first see some other provisions.  The Act is intended to make  provision  for  the investigation  and  settlement  of industrial disputes.  Chapter II names the authorities under the  Act.   They are Works, Committee (s.  3),  Conciliation Officers  (S. 4),Boards of, Conciliation (s. 5),  Courts  of Inquiry  (s.  6), Labour Courts (s. 7), Tribunals  (s.  7A), National   Tribunals  (s.  7B).   Each  of  these   sections prescribes  the  qualifications  of the persons  fit  to  be appointed.  They are either wholly or partially different as we shall see presently.  Section 7C, however 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 65 years.  Section 8 deals with vacancies and then comes s. 9 laying down the  finality of  orders  constituting  Boards  etc.   We  shall  read  it presently. We are concerned with s. 7 which provides for the  constitu- tion of Labour Courts and prescribes the qualifications  for appointment.  The section may be read here "7. Labour Courts." 617 .lm15 (1)  The appropriate Government may, by notification in  the Official  Gazette, constitute one or more Labour Courts  for

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the  adjudication  of industrial disputes  relating  to  any matter  specified in the Second Schedule and for  performing such  other functions as 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)  he  has  held the office of the 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; or (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."  This  matter is covered only by cl. (d) of the  third  sub- section.   It  may,  however, be  noticed  that  no  special qualifications   are   prescribed  for   Works   Committees, Conciliation Officers, Boards of   Conciliation  and  Courts of Inquiry such as are to be found in s.     7 quoted  here. Special qualifications of the members are to be   found only in  respect  of-  Labour  Courts,  Tribunals  and   National Tribunals.   These are one-man bodies and the  qualification of  the  member  is stated.  In the case  of  Tribunals  the qualification is :               "7A.  Tribunals.               (1) (2)               (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, for a period of  not  less  than               three years,               618               been   a  District  Judge  or  an   Additional               District Judge; or               (b)   he  has held the office of the  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."               and  in  the case of  National  Tribunals  the               qualifications are               "7B.  National Tribunals.               (1)......               (2)....               (3)...A  person  shall not  be  qualified  for               appointment as..the  presiding  officer  of  a               National Tribunal unless-                (a)  he  is, or has been, a Judge of  a  High               Court; or               (b)...he  has held the office of the  chairman               or  any other member of the  Labour  Appellate               Tribunal  constituted  under  the   Industrial               Disputes (Appellate Tribunal) Act, 1950, for a               period of not less than two years." The  selection  thus  is  most restricted  in  the  case  of National  Tribunals,  and in varying degree  less  and  less

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restricted as we pass to Tribunals and Labour Courts.   Thus National Tribunals can be presided over only by a person who is  or  has  been a Judge of a High Court or  has  held  the office  of  the chairman or any other member of  the  Labour Appellate Tribunal for a period of not ,less than two years. These qualifications do not admit of any ,doubt or exception since the incumbent’s qualifications are quite ’clearly  set down.   In the case of Tribunals the range of  selection  is made  wider by including a District Judge or  an  Additional District Judge, who has held this office for a period of not less than 3 years.  The selection is made still wider in the case  of  Labour  Courts by  making  competent  in  addition presiding  officers ,of Labour Courts constituted under  any Provincial  Act or State Act for not less than 5 years,  and persons  holding  judicial office for not  less  than  seven years.  There is, however, no definition of judicial  office and here the difficulty arises. Mr.  Deb, the incumbent of the office in the  present  case, had at his back the following career :                (a)Sri Hem Ranjan Deb was first appointed  on               23rd January 1940 as a Sub Deputy Collector on               probation   and  on  24th  January  1940   was               appointed  as Sub-Deputy Collector and  Circle               Officer.                                    619               (b)...On  1st  July 1940 he was  vested  with,               power  of  a third class Magistrate.   He  was               confirmed   in  the  post  of   a   Sub-Deputy               Collector on 23rd January, 1941.               (c)...On 1st July 1950 the said Hem Ranjan Deb               was  vested  with  Powers of  a  Second  class               Magistrate and on 1st April 1951 he was vested               with powers of a First Class Magistrate ...               On  July  27, 1959 Mr. Deb was  appointed  the               presiding  officer of the Second Labour  Court               by Notification No. 3422-IR/IR/ 3A-9/59.   The               notification read :               "In  exercise  of  power  conferred  by   Sub-               sections (2) and (3) of S.T. of the Industrial               Disputes Act 1947 read with S. 7C of the  said               Act,  the Governor is pleased to  appoint  Hem               Ranjan  Deb who is an independent  person  and               has  not attained the age of 65 years and  has               held  a judicial office in India for not  less               than  7 years to be the Presiding  Officer  of               the Second Labour Court constituted under  the               Government  of West Bengal’s notification  No.               1727-IR/IR/3A-1/58 dated 26th April 1958  vide               Shri   Probodh   Chandra   Maitra    (Calcutta               Gazettee, 6th August 1959)". The  notification took into account the provisions of S.  7C already  analysed  by  us  and also  declared  that  he  was qualified  under  s.  7  (3)  (d).   Government   apparently considered  the office held by him from January 23, 1940  to July   27,   1959  as  a  judicial  office   necessary   for appointment.   Since,  the  period for  which  he  held  his earlier  office  is  well  in excess of  7  years  the  only question  is whether it was a ’judicial office’.  If it  was then  undoubtedly  Mr.  Deb was qualified.  If  there  be  a dispute then the matter falls to be considered.  In doing so we must take into further account the provisions of s. 9  of the Act as substituted by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1936 (36 of 1956).   That amending Act also recast S. 7 in its present form and  added ss. 7A, 7B and 7C.  Section 9 may now be read but it is  not

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necessary to read beyond the first sub-section "9. Finality of orders constituting Boards, etc.               (1)...No  order of the appropriate  Government               or  of the Central Government  appointing  any               person as the chairman or any other member  of               a  Board or Court or as the Presiding  officer               of  a  Labour  Court,  Tribunal  or   National               Tribunal  shall be called in question  in  any               manner;  and no act or proceeding  before  any               Board or Court shall be called in question  in               any  manner  on  the  ground  merely  of   the               existence of any vacancy in, or defect in  the               constitution of, such Board or Court." L7 Sup.CI/68-15. 620 It  may  be  noticed  that the  first  part  refers  to  the appointment  of  any  person as the chairman  or  any  other member of a Board or Court or as the presiding officer of  a Labour  Court,  Tribunal or National Tribunal.   The  second part  deals  with  Board  or  Court  and  ’in  view  of  the definition of ’Board’ ’and ’Court’ in s. 2(c) and (f) refers to  a Board of conciliation or Court of Inquiry  constituted under  the  Act.  With these we are not  concerned  and  the second part of s. 9, therefore-’ has no bearing although  in the High Court that part alone was considered and the  first part ignored. Now  the points for us to decide are, first whether Mr.  Deb held  a  ’judicial office’ and next even if our  Opinion  be that he did not can we declare his appointment to be invalid when   s.  9  prohibits  the  calling  in  question  of   an appointment by Government ? Before we deal with these points in the, light of the arguments addressed to us, we may say a few  words  about how these points were viewed by  the  High Court. Banerjee J. who first heard the Hanuman Foundries case  made a  distinction  between  ’judicial  office’  and   ’judicial function’   and  came  to  the  conclusion   that   although magistrates  Perform judicial functions, they could  not  be said to hold ’judicial office’.  Bachawat J.,  distinguished between  ’judicial  office’  and  ’judicial  service’.    He referred to the provisions of the Constitution bearing  upon the appointment of Judges of the High Court and the District and  subordinate courts, where these expressions  occur  and demonstrated the difference.  In his view magistrates  could be  said to occupy judicial office, but they did not  belong to  judicial service.  The approach of Sinha and  Basu  JJ., was the same as that of Banerjee J., although the matter was stated with great elaboration and copious references to  the Criminal Procedure Code, and English and American cases, and text books. It  is  not necessary to go over this  field.   All  learned Judges  seem to agree that a magistrate  exercises  judicial functions.  This does not admit of any doubt and no  reasons are  required.   That  his duties are  partly  judicial  and partly  other does not in any way detract from the  position that while acting as a magistrate lie is a judicial officer. The dispute, therefore, really reduces itself to this : Does the  magistrate hold an "office".  An office means  no  more than  a  position  to which  certain  duties  are  attached. According to Earl Jowitt’s Dictionary a public office is one which entitles a man to act in the affairs of others without their   appointment  or  permission.   The  ’office   of   a magistrate’  is a correct expression in English and in  law. Indeed  the  well-known maxim of Coke  on  Littleton  (234a) officia magistratus non debent-esse venalia (the offices  of

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a magistrate ought not be saleable) clearly brings out  that the word office can be, applied to magistrates.  Thus 621 there may be an office of a judge (officii judicis) which in ecclesiastical  law  at least was said to be  promoted  when criminal proceedings were taken.  But there may be also  the office  of  a magistrate.  Cicero in his De Legibus  and  De officiis  makes  no difference between a magistratum  and  a judex.  His famous saying Magistratum legem esse  loquentem, legem autem mutum magistratum (The Magistrate is a  speaking law,  but  the law is a silent magistrate) was  intended  to apply to all judges of all kinds.  The word ’office has been applied   to  magistrates  by  Tacitus,  Ovid  and   others. Bachawat  J.  has  given many references  to  bear  out  the meaning we have given and has very -pertinently pointed  out that  the Judicial Officers Protection Act , is intended  to protect  not Civil Judges alone but also  Magistrates.   The distinction between judicial function and judicial office in this context is artificial and unsubstantial.  We agree with Bachawat J., that a magistrate holds a judicial office. Once  this is so held the appeal must fall.  But  we  cannot overlook  the fact that even if there be some doubt that  is to be resolved in favour of upholding the appointment on the ground  that the Legislature itself contemplates  that  such appointments  should not be called into question.   Although the provisions of s. 9 cannot shut out an inquiry (if  there is  a  clear  usurpation)  for purposes of  a  writ  of  quo warranto  but at least in an unclear case the intent of  the legislature  is entitled to great weight.   The  Legislature has created the conditions of appointment and with its  last voice his shut out inquiry.  The provisions of s. 7 (3)  (d) therefore, are not so absolute as to be wholly mandatory  in the  same, way as the provisions of other clauses are  since they  admit  of  no  doubt, and  therefore  do  not  require construction.  The High Court      III   a   quo    warranto proceeding  should  be  slow to pronounce  upon  the  matter unless  there  is  a clear infringement of the  law.   If  a station  master were appointed we can readily  question  the appointment but when a person exercising judicial  functions is appointed one cannot be too astute to say that the person does  not  hold a judicial office when it must at  least  be conceded  that he holds ,in office of some kind.   Nor  does the  argument  that magistrates will claim to  be  appointed Judges  of  the  High Court need detain us.  The  scheme  of Chapter  V of Part VI of the Constitution its own affect  on the  meaning  of  the  expressions  ’judicial  office’   and ’judicial  service’.   In  any  case the  use  of  the  same expression  in any other enactment not in pari  materia  can have  no bearing upon the Industrial Disputes Act  and  vice versa.   In  the  Constitution these  words  must  bear  the meaning  which the context dictates and in  that  connection the history of appointment of Judges cannot be overlooked. Lest  our  meaning be extended by Government  to  cases  un- deserving  of  saving under S. 9, we wish to make  it  clear that the 622 intention  of the Legislature really is that men who can  be described  as  independent  and  with  sufficient   judicial experience  must  be selected.  The mention  of  High  Court Judges  and  District  Judges earlier in  the  same  section indicates  that ordinarily judicial officers from the  civil judiciary must be selected at last so long as the separation of  judiciary from the Executive in the public  Services  is not finally achieved.  The appointment of a person from  the ranks of civil judiciary carries with it an assurance  which

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is  unique.   The functions of a Labour Court are  of  great public  importance  and  quasi  civil  in  nature.   Men  of experience  on the civil side of the law are  more  suitable than  Magistrates.  Persons employed on multifarious  duties and in addition performing some judicial functions, may  not truly answer the requirement of s. 7 and it may be open in a quo warranto proceeding to question their appointment on the ground  that they do not hold essentially a judicial  office because  they  primarily perform other  functions.   For  it cannot  be  denied that the expression "holding  a  judicial office" signifies more than discharge of judicial  functions while holding some other office.  The phrase postulates that there  is  an  office  and that  that  office  is  primarily judicial.  Office means a fixed position for performance  of duties.   In  this case the  distinction  was  unsubstantial because  the  Magistrate was holding a  fixed  position  for nineteen  years  and  performing functions  primarily  of  a judicial  character.  The case was not fit for  interference by a writ in view of the provisions of s. 9 of the Act. In  the  result we are of opinion that  the  judgment  under appeal  is  right  although  the,  reasons  justifying   the conclusion  ’are  different  from  those  accepted  by   the Divisional  Bench from the- earlier case of the same  Court. The appeal fails and will be dismissed with costs. Y.P.                  Appeal dismissed. 623