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PETITIONER: THE STATE OF MAHARASHTRA

       Vs.

RESPONDENT: LABOUR LAW PRACTITIONERS’ ASSOCIATION AND ORS.

DATE OF JUDGMENT:       11/02/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar, J.      The  first   respondent,  Labour   Law   Practitioners’ Association is  an association  of Member  practising in the Industrial and  Labour Courts  in the  State of Maharashtra. The Association  filed a writ petition before the High Court challenging the  appointment of respondents 2 and 3 who were Assistant Commissioners  of Labour,  as Judge  of the Labour Court at  Pune and  Sholapur under  a Notification issued by the Government  of Maharashtra  dated  8.3.1979.  They  also prayed that  the provisions  of the amended Section 9 of the Bombay Industrial Disputes Act in so far as these provisions authorised the  appointment of  Assistant  Commissioners  of Labour as  Judge of  the Labour Court, were void and illegal and contrary  to Article  234 of the Constitution. There was also a  prayer in  the writ  petition for a direction to the State of  Maharashtra  to  comply  with  the  provisions  of Article 235 of the Constitution in appointing     judge   of the Labour  Court. A  learned Single Judge of the High Court set aside  the Notification  of 8th  of March, 1979 and also gave a  direction to the State of Maharashtra to comply with the provisions  of Article  234 of  the  Constitution  while making appointments  of judges  of the  Labour Court.  Being aggrieved b  y this  judgment and order, the appellant-State of Maharashtra  preferred an  appeal before a Division Bench of the  High Court  which appeal  has been dismissed. Hence, the present appeal has been filed before us.      Labour Courts  have been  constituted in  the State  of Maharashtra under  the Industrial  Disputes Act,  the Bombay Industrial Relations  Act and  also  under  the  Maharashtra Recognition of Trade Unions an d Prevention of Unfair Labour Practices Act. Prior to 1974, the qualifications of a person to be  appointed as a judge to of the Labour Court under the Industrial Disputes  Act as  laid down  in Section 7 were as follows:      (a)  that he  was  or  had  been  a           judge of that  High Court; or      (b)  that he  h ad  for a period of           not less than three years been           a  District   Judge  or     an

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         Additional District Judge ; or      (c)  that he had held the office of           the  Chairman   or  any  other           Member of the Labour Appellate           Tribunal or  of  any  Tribunal           for a  period of not less than           two years; of      (d)  that  he had held any judicial           office in  India for  not less           than seven years; or      (e)  that he had been the Presiding           Officer of  the  Labour  Court           constituted     under      any           provincial Act  for  not  less           than five years. By the  Industrial  Disputes  (Maharashtra  Amendment)  Act, 1974, Section  7 was  amended  and  three  more  sources  of recruitment to  the post of a judge of the Labour Court were added. These are :      "(d-1) he has practised as an           advocate or  attorney for not           less than seven years in the           High Court or any court           subordinate thereto or any           Industrial Court or Tribunal           or Labour Court constituted           under any law for the time           being in force ; or      (d-2) he holds a degree in law of a           University established  by law           in any  part of  India and  is           holding or has held the office           not lower in rank than that of           Deputy   Registrar   of   such           Industrial Court  or  Tribunal           for not  less than five years;           or      (d-3) he  holds a  degree in law of           University established  by law           in any  part of  India and  is           holding or  has held an office           not lower in rank than that of           Assistant   Commissioner    of           Labour   under    the    State           Government for  not less  than           five years."      Under  the  Bombay  Industrial  Relations  Act,  as  it originally stood, Section 9 provided that no person shall be eligible to  be appointed  as a  judge of  the Labour  Court unless he  possessed  the  qualifications,  other  than  the qualification of  age, laid  down under  Article 234  of the Constitution  for  being  eligible  to  enter  the  judicial service in  the State of Maharashtra. By Maharashtra Act No. 47 of  1977 dated  24th of  October, 1977,  Section 9 of the Bombay Industrial Relations Act was amended b y substituting a new  sub-section (2)  for the  original sub-section (2) of Section 9. The amended sub-section (2) of Section 9 provides as follows:      "9(2): A    person   shall  not  be      qualified for  appointment  as  the      presiding officer of a Labour Court      unless :      (a)  he  had   held  any   judicial           office in  India for  not less           than five years; or

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    (b)  he   had   practised   as   an           Advocate or  Attorney for  not           less than  seven years  in the           High  Court   or   any   Court           subordinate thereto, or in any           Industrial  Court  constituted           under any  law  for  the  time           being in force; or      (c)  he holds  a degree in law of a           University established by  law           in any  part of  India and  is           holding or  has held an office           not lower in rank than that of           Deputy Registrar  of any  such           Industrial Court  or Tribunal,           or of  Assistant  Commissioner           of  Labour   under  the  State           Government, in  both cases for           not less than five years." By  this  amendment,  the  requirements  contemplated  under Article 234 of the Constitution were deleted.      Under Section 6 of the Maharashtra Recognition of Trade Unions and  Prevention of Unfair Labour Practices Act, 1971, the State  Government is  entitled to constitute one or more Labour  Courts   and  appoint   persons  having   prescribed qualifications as  judges of  these courts.  The proviso  to Section 6 lays down that no person shall be appointed unless he possesses the qualifications other than the qualification of age. prescribed under Article 234 of the Constitution for being eligible to enter the judicial service in the State of Maharashtra and  is not  more than  60 years  of  age.  This provision  remains   unamended.  However,  in  view  of  the amendment carried out in the Industrial Disputes Act and the Bombay Industrial  Relations Act, the  state Government felt that  it  was  open  to  the  State  Government  to  appoint Assistant Commissioners  of Labour  working under  the State Government for  a period  of not  less than  five years  and holding a  law  degree,  to  the  office  of  the  presiding officers of  Labour Courts. The impugned Notification of 8th of March,  1979, therefore,  was issued  appointing two such persons as  presiding officers  of Labour Courts at Sholapur and Pune  which has  been challenged  in these  proceedings. According to the first respondent- Association, appointments as presiding  officers of  Labour Courts are appointments to the judicial  service  of  the  State  and  are,  therefore, governed b y Article 234 of the Constitutions.      There is not much difficulty in holding that the Labour Court performs judicial functions and is a Court. The Labour Court adjudicates  upon disputes  that, had it not  been for the Industrial Disputes Act, the Bombay Industrial Relations Act and  the Maharashtra  Recognition of  Trade Unions  an d Prevention of  Unfair Labour  Practices Act, would have been within the  jurisdiction of  the ordinary  civil  courts  to decide, although  the ordinary  civil courts may not be able to grant  all the  reliefs that  are contemplated  by  these Acts. The  Labour Courts  are, therefore,  courts and decide disputes that are civil in nature.      In the case of The Bharat Bank Ltd., Delhi v. Employees of the  Bharat Bank  Ltd., Delhi  (1950 SCR 459), this Court considered whether  an Industrial  Tribunal w as a court. It said that  one cannot  go by  mere nomenclature.  One has to examine the  functions of a  Tribunal and how it proceeds to discharge those  functions.  It  held  that  and  Industrial Tribunal had  all the  trappings of  a court  and  performed functions which cannot but be regarded as judicial.    The

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Court referred to the Rules b y which proceedings before the Tribunal were  regulated. The  Court dwelt on the fact t hat the powers  vested in  it are  similar to those exercised by civil courts under the code of civil Procedure when trying a suit. It  had the  power of  ordering discovery,  inspection etc, and  forcing the  attendance of  witnesses.  compelling production of  documents and  so on. It gave its decision on the basis  of evidence  and in accordance with law. Applying the test laid down in the case of Cooper v. Wilson [(1937) 2 K.B. 309  at p. 340], this Court said that "a true  judicial decision presupposes  an existence of dispute between two or more parties  and then  involves for  requisites :-  (1) the presentation of their case by the parties; (2) ascertainment of facts  by means  of evidence adduced by the parties often with the  assistance of argument ;(3) if the dispute relates to a question of law, submission of legal, arguments b y the parties; an  d (4)  b y decision which disposes of the whole matter by  findings on  fact and application of law to facts so found,  judged by  the same  tests, a  Labour Court would undoubtedly   be a  court in the true sense of the term. The question,  however,  is  whether  such  a  court  an  d  the presiding officer  of such  a court  can   be said to hold a post in  the judicial  service of  the State  as defined  in Article 236 of the Constitution.      Part VI, Chapter VI, of the Constitution of India deals with courts subordinate to the High Court. Article 233 which is the first Article of this Chapter, deals with appointment of District Judge. Article 234 provides as follows:      "234 :    Recruitment  of   persons      other than  district judges  to the      judicial service -           Appointments of  persons other      than   district   judges   tot   he      judicial service  of a  State Shall      be made  by  the  Governor  of  the      state shall  be made by him in that      behalf after  consultation with the      State public  Service Commission an      d with  the high  Court  exercising      jurisdiction in  relation  to  such      State."      Article 235  provides that  the control  over  district courts and courts subordinate there to including the posting an d  promotion of,  and the  grant  of  leave  to,  persons belonging tot he judicial service of a State and holding any post inferior to the post of district judges shall be vested in the High Court.      Article 236 (a) defines the expression "district judge" as  including  judge  of  a  city  civil  court,  additional district   judge, chief  judge of a small cause court, chief presidency   magistrate,    additional   chief    presidency magistrate, additional chief presidency magistrate, sessions judge,  additional  sessions  judge  and  assistant  session judge. This  is an  extensive definition  and does not cover every category  of a  district judge.  While considering the definition of  a "District Judge", one can also bear in mind a similar definition of "District Judge" in Section 3(17) of the General  Clauses Act,  1897 and  Section  3(15)  of  the Bombay General Clauses Act, 1904. It is as follows:      "District  Judge;  shall  mean  the      judge of a principal civil Court of      original jurisdiction but shall not      include  a   High  Court   in   the      exercise   of   its   ordinary   or      extraordinary    original     civil

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    jurisdiction."      The   District Judge,  therefore, covers a judge of any Principal Civil  Court of  Original  Jurisdiction.  With  an increase  in   the  numbers  of  a  specialised  courts  and tribunals which are being set up to deal with specific kinds of civil  litigation which  would otherwise  have been dealt with b  y the ordinary civil courts, we now have a number of specialised courts  exercising different categories of civil original jurisdiction.  It can be specialised civil original jurisdiction pertaining  to Labour  and Industrial  disputes specified in  the relevant Acts as in the case of Labour and Industrial Courts,  or it could be pertaining to recovery of bank  debts  and  so  on.  The  structure  of  civil  courts exercising original  jurisdiction is  no longer  monolithic. The judge of the Principal Civil Court heading the concerned set of  courts under  him an  d exercising that jurisdiction can also  fall in  the category  of a  "District  Judge"  by whatever name  called.  Learned  single  judge  and  learned Judges of  the Division Bench have, therefor, held t hat and Industrial Court  is a civil court exercising civil original jurisdiction; and the person presiding over it could well be termed as  a District  Judge. The  term    "District  Judge" should not  b e confined only to  the judge of the Principal Civil Court  in the  hierarchy of  general civil courts. The term would  now  have  to  include  also  the  hierarchy  of specialised civil  courts, such  as a  hierarchy  of  Labour Courts and  Industrial  Courts.  The  fact  that  the  Chief Presidency Magistrate  and  the  Sessions  Judge  were  also included in  the definition  of "District"  Judge  indicates that a  wide interpretation is to be given tot he expression "District Judge".  The extensive  definition of   a District Judge under Article 236 is indicative of the same.      Under  Article   236  (b),   the  expression  "judicial service"  is   defined  to   mean  "a   service   consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district  judge."   Judicial  service   thus  postulates   a hierarchy of  courts with t he District Judge as the head an d  other   judicial  officers  under  him  discharging  only judicial functions.      In the  case of Chandra Mohan v. State of Uttar Pradesh & Ors [AIR 1966 SC 1987] this Court was required to consider the question  of  eligibility  of  "judicial  officers"  for appointment as  District Judges  under Article  233  of  the Constitution. Under  the U.P.  Higher Judicial Service Rules "Judicial  Officers"   were  eligible   for  appointment  as District Judges  and  the  expression  was  meant  to  cover members of  the executive  department  who  discharged  some revenue and  magisterial duties also. When selection of such persons was  challenged, this Court was required to consider and interpret  the provisions  of Articles 233 to 236 of the Constitution. The  procedure for  selection under  the  said Rules was  also challenged  as violative of Article 233. The Court said  that the  Governor could not appoint as District Judge  persons   from  services   other  than  the  judicial services. A  person who is in the police, excise, revenue or such other service cannot b e appointed as a District Judge. Dealing with the definition of "judicial service" in Article 236, this Court said that the judicial service consists only or persons  intended to fill up the posts of District Judges and other  civil judicial  posts and  that is  an  exclusive service  only   consisting  of   judicial  officers.  In  so interpreting  judicial   service  in  contra-distinction  to executive service  where some executive officers may also be performing judicial or quasi-judicial functions, this  Court

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was at  pains to  emphasis  the  Constitutional  scheme  for independence of  the judiciary.  It said that the acceptance of this  (i.e. Government’s)  position would take us back to pre-independence days  and would  also cut  across the well- knit scheme  of the  Constitution providing for independence of the  judiciary. This  Court, therefore,  defined judicial officers discharging  entirely judicial duties. It said that having provided  for appointments to that service and having entrusted the control of the said service to the care of the High Court,  the makers  of the  Constitution would not have conferred a  blanket power  on the  Governor to  appoint any person from any service as a District Judge.      Reliance has  been place  upon this judgment as showing that judicial  service is interpreted narrowly to cover only the hierarchy  of civil courts headed by the District Judge. This Court,  however, was  not considering  the position  of other  civil   courts,  in  the  context  of  the  extensive definition given  to the  term "district  judge". This Court was concerned  with preserving independence of the judiciary from the  executive and  making sure t hat persons from non- judicial services,  such as,  the police,  excise or revenue were not  considered as eligible for appointment as District Judges. That  is why  the emphasis  is on  the fact that the judicial service  should  consist  exclusively  of  judicial officers. This  judgment should  not be interpreted narrowly to exclude  from judicial  service new  hierarchies of civil courts being  set up which are headed by a judge who can b e considered  as   a  District  Judge  kneading  in  mind  the extensive definition of that term in Article 236.      The High  Court has,  therefore, correctly  interpreted the observations  of this  Court  in  Chandra  Mohan’s  case (supra) as giving paramount importance to the enforcement of the constitutional  scheme providing for independence of the judiciary. The  concern of  the court  was to  see that this independence was not destroyed by an indirect method.      For the  same reason of maintaining independence of the judiciary, in  the case  of Statesman (Private) Ltd. v. H.R. Deb &  Ors. [AIR 1968 SC 1495], this Court observed that the intention of  the Legislature in framing Section 7 (prior to amendment) of  the Industrial  Disputes Act was that men who could be  described  as  independent  and  with  sufficiency judicial experience must be selector as Labour Court Judges. The Court  was considering  the unamended  Section 7  of the Industrial Disputes  Act.  In  fact,  in  the  case  of  the unamended  Bombay   Industrial   Relations   Act   and   the Maharashtra Recognition  of Trade  Unions and  Prevention of Unfair  Labour   Practices  Act,  the  qualifications  of  a presiding officer  of the  Labour Court  were  in  terms  of Article 234  until the  Bombay Industrial  Relations Act was amended. In  the case  of Maharashtra  Recognition of  Trade Unions and  Prevention of  Unfair Labour  Practices Act, the qualifications still remain as before.      We need  not refer  at length to various other judgment which have dealt with the question whether a Tribunal set up under different  Acts which  were before  the Court  in each case was  a judicial  body or  a court, and whether it was a court subordinate  to the  High Court.  In  Harinagar  Sugar Mills Ltd.  v. Shyam Sunder Jhunjhunwala & Ors. [AIR 1951 SC 1559], the  Central Government  exercising appellate  powers under Section 111 of the Companies Act was held to be acting as a  judicial body  and not as an administrative body. In t he case of Shripatrao Dajisahab Ghatge & Anr v. The State of Maharashtra &  Anr. [AIR 1977 Bombay 384], the term "courts" was held  to cover all tribunals which were basically courts performing judicial  functions giving  judgments which  were

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binding and  exercising sovereign judicial power transferred tot   hem by  the State.  It was  held that High Court could exercise  its  jurisdiction  under  Article  227  over  such tribunals. A  Full Bench  of the  Gujarat High  Court in the case of  Shaikh Mohammedbhikhan  Hussainbhai &  etc. v.  The Manage, Chandrabhanu Cinema & Ors, etc. [1986 Lab I.C. 1749] held that  Labour Courts  and Industrial  Courts were courts for the  purposes of  contempt of  Courts Act  and were also courts subordinate to the High Court.      The Allahabad  High Court  in the  case of  M/s  Poysha Industrial Company  Ltd. Ghaziabad v. State of Uttar Pradesh & Ors.  [1985 Lab.  I.C. 1633]  has, however,  held that the presiding officer  of a  Labour Court does not belong tot he judicial service of the State as defined in Article 236. The Allahabad High Court’s judgment has retied upon the decision of the    Court in  Chandra Mohan’s  case  (supra)  for  the purpose of   holding  that  it  is  only  the  hierarchy  of ordinary civil  courts in  the  narrow  sense  headed  by  a District  Judge  which  comes  under  t  he  term  "judicial service" under  Article 236. The view taken by the Allahabad High Court  appears to  b e  too narrow  a view  of the term "judicial service".  In Chandra  Mohan’s case (supra), t his Court was  primarily concerned  with excluding from judicial service persons  who held  posts in  services which were not exclusively  judicial.   When  the  service  is  exclusively judicial, there  is  no  reason  to  exclude  such  judicial service from  that term under Article 236. The High Court in the present  case is  justified in rejecting the narrow view taken in that  judgment.      In the  case of  Shri Kumar  Padma Prasad  v. Union  of India &  Ors. [(1992)  2 SC 428], this Court had to consider qualifications for  the purpose of appointment as a judge of the High  Court under Article 217 of the Constitution. While interpreting the  expression "judicial office" under Article 217(2) (a),  this Court  held that  the expression "judicial office" must   be interpreted in  consonance with the scheme of Chapters  V and  VI of  Part VI  of the Constitution. Son construed it  means a  judicial office  which belongs to the judicial service as defined under Article 236(b). Therefore, in order  to qualify  for   appointment as   judge of a High Court, a  person must hold a judicial office which must be a part of  the judicial  service of the State. After referring to  the   cases  of  Chandra  Mohan  (supra)  and  Statesman (Private) Ltd.  (supra),  this  court  said  that  the  term "judicial office"  in its  generic sense  may include a wide variety  of   offices   which   are   connected   with   the administration of  justice in one way or the other. Officers holding various  posts under  the executive are often vested with magisterial  power to meet a particular situations. The Court said,  "Did the  framers of the Constitution have this type of  officers in  mind when  they provided  a source  of appointment to the high officer of a judge of the High Court from amongst the holders of  a "judicial office"? The answer has to be in the negative. We are of the view that holder of judicial officer  under Article  217(a) means the person who exercises only  judicial functions, determines causes inter- parties and  renders decisions  in   a judicial capacity. He must belong to the judicial service which as a class is free from executive  control and  is disciplined  to  uphold  the dignity, integrity  and independence  of    the  Judiciary." Going b  y these  tests laid  down as  to  what  constitutes judicial service  under Article 236 of the Constitution, the Labour Court  Judges and  the judges of the Industrial Court can be  held to  belong to  judicial service.  The hierarchy contemplated in  the case  of Labour  Court  judges  is  the

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hierarchy of Labour Court judges and Industrial Court judges with  eh   Industrial  Court  judges  holding  the  superior position of  District Judges.  The Labour  Courts have  also been  held   as  subject   to  the  High  Court’s  power  of superintendence under Article 227.      The decision  in  the  case  of  Rajasthan  State  Road Transport Corporation  & Anr. v. Krishna Kant & Ors. [(1995) 5 SC 75] is also cited before us. It dealt, inter alia, with the  inter-relationship   of  jurisdiction   of  Labour  and Industrial Courts  ad  dispute  resolving  forums  with  the jurisdiction of  civil courts.  It is not directly concerned with the question which is before us.      The   constitutional scheme  under Chapter V of Part VI dealing with  the High  Courts and  Chapter  VI  of  Par  VI dealing with  eh subordinate courts shows a clear anxiety on the part  of the framers of the Constitution to preserve and promote independence  of the  judiciary from  the executive. Thus Article  233 which  deals with  appointment of District judges requires that  such appointments shall be made by the Governor of  the State in consultation with  the High Court. Article 233(2)  has been interpreted as prescribing that  "a person in  the service of the Union or the State" can  refer only to a person in the judicial service of the Union or the State. Article  234 which  deals with recruitment of persons other  that District Judges to the judicial service requires that their  appointments can be made only in accordance with the Rules  framed b  y  the  Governor  of  the  State  after consultation with  the State  Public Service  Commission and with the  High Court.  Article 235  provides that he control over district courts and courts subordinate thereto shall be vested in  the High  Court;  and  Article  236  defines  the expression "District  Judge" extensively  as covering judges of a  city civil  court etc,  as earlier  set out,  and  the expression  "judicial   service"  as   meaning   a   service consisting exclusively  of   persons intended  to fill   the post of  the District  Judge and  other civil judicial posts inferior to  the post of  District judge. Therefore, bearing in  mind   the  principle   of  separation   of  powers  and independence of the judiciary, judicial service contemplates a service  exclusively of judicial posts in which their will be a  hierarchy headed  by a  District Judge. The High Court has  rightly   come  to  the  conclusion  that  the  persons presiding over Industrial and Labour Courts would constitute a judicial service so defined. Therefore, the recruitment of Labour Court  judges is  required to  be made  in accordance with Article 235 of the Constitution.      In the  premises, the  appeal is dismissed. There will, however, be no order as to costs.