Full Judgment Text
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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