Full Judgment Text
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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
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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.
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(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