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Mangharam (J.B.) and Co. Vs. Kher (K.B.) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in(1957)ILLJ76MP
AppellantMangharam (J.B.) and Co.
RespondentKher (K.B.) and ors.
Cases ReferredCommissioner v. Pemsel
Excerpt:
- - ' the definition does not, like the definition of 'magistrate' given in section 3(32), general clauses act, say that a district judge shall include every person exercising all or any of the powers of a district judge. that definition cannot clearly be applied where the question is whether under a certain enactment the office of a district judge includes the office of an additional district judge or whether an additional district judge can exercise the powers of a district judge under that enactment. cases are not unknown in this state, as well as in other states, where persons who worked as additional district judges were not considered fit for being appointed as district judges. i must say that i feel i have had small success in following this reasoning. the words in the proviso.....dixit, j.1. this is a petition under article 226 of (sic) constitution praying that a writ of issue of a (sic) in the nature of quo warranto against (sic) non-applicant sri k.b. kher to show (sic) cause as to by what authority he is func- (sic) as a tribunal under section 7 of the industrial disputes act, 1947 (act xiv of 1947). and is exercising and performing the powers, duties and functions of a tribunal under the act, and for the issue of a writ of certiorari for quashing proceedings before mr. kher in respect of an industrial dispute between the petitioner and j.b. mangharam biscuit factory labour union, gwalior, as also the proceedings commenced against the petitioner under section 63a of the act.2. the facts which give rise to this petition are not in controversy and may be shortly.....
Judgment:

Dixit, J.

1. This is a petition under Article 226 of (sic) Constitution Praying that a writ of issue of a (sic) in the nature of quo warranto against (sic) non-applicant Sri K.B. Kher to show (sic) cause as to by what authority he is func- (sic) as a tribunal under Section 7 of the Industrial Disputes Act, 1947 (Act XIV of 1947). And is exercising and performing the powers, duties and functions of a tribunal under the Act, and for the issue of a writ of certiorari for quashing proceedings before Mr. Kher in respect of an industrial dispute between the petitioner and J.B. Mangharam Biscuit Factory Labour Union, Gwalior, as also the proceedings commenced against the petitioner under Section 63A of the Act.

2. The facts which give rise to this petition are not in controversy and may be shortly stated. The Industrial Disputes Act, 1947, provides by Section 7 for the establishment of industrial tribunals. The relevant portion of that section is as follows:

1. The appropriate Government may constitute one or more industrial tribunals for the adjudication of industrial disputes in accordance with the provisions of this Act.

2. A tribunal shall consist of such number of independent members as the appropriate Government may think fit to appoint, and where the tribunal consists of two or more members, one of them shall be appointed as the chairman thereof.

3. Where a tribunal consists of one member only that member, and where it consists of two or more members the chairman of the tribunal, shall be a person who

(a) is or has been a Judge of a High Court, or

(b) is or has been a District Judge; or

(c) is qualified for appointment as a Judge of a High Court;

Provided that no appointment under this sub-section to a tribunal shall be made of any person not qualified under Clause (a) or Clause (b) except with the approval of the High Court of the State in which the tribunal has, or is intended to have, its usual seat.

On 3 February 1955 the Government published a notification in the Gazette appointing Sri Kher to be 'a permanent industrial tribunal' under Section 7 of Act XIV of 1947. Sri Kher is a member of Madhya Bharat Judicial Service holding the substantive rank of a civil Judge, first class. Early in January 1955 his services were placed at the disposal of the Development and Labour Department for appointment as a Judge of the Industrial Court under the Bombay Industrial Relations Act, 1946, as adapted in Madhya Bharat by the Madhya Bharat Industrial Relations Adaptation Act, Samvat 2006.

He was working as an Additional District Judge, Indore, when his services were loaned to the Development Department. Sri Kher was never a Judge of a High Court or a District Judge. On 21 June 1955 by order No. 3274-399-14-55 the Government referred a dispute between the applicant factory and its labour union to the adjudication of industrial tribunal. The order was published in the Gazette, dated 30 June 1955 (annexure B to the petition) and Bets out the matters referred to the tribunal for adjudication.

On 1 August 1955 the Government issued a memorandum No. 3247-14-399-55 amending the reference, dated 21 June 1955, by adding one more point of dispute for adjudication. In pursuance of these references Sri Kher commenced proceedings for adjudication of the points of dispute referred to the industrial tribunal and the matter is now pending before him.

At the commencement of the proceedings the applicant challenged before the industrial tribunal the validity of the appointment of the industrial tribunal presided over by Sri Kher and of the proceedings commenced by him on the grounds which constitute the main points at issue between the parties in this petition. Sri Kher rejected all the objections raised by the petitioner. It was at this stage that the present application was filed.

3. The applicant contends that 'Sri Khei was not qualified to be appointed as a one-member tribunal under Clause (a) or (b) of Section 7(3) of the Act; that if and so far as the Government purported to appoint him as the tribunal under Clause (c) the Government had no authority to appoint him to the tribunal without the approval of the High Court; that the appointment of Sri Kher as a permanent tribunal under Section 7 was contrary to the provisions of Section 10 which contemplated the appointment of an ad hoc tribunal when any industrial dispute existed or wa3 apprehended and was, therefore, ultra vires; and that the Government had no jurisdiction under Act XIV of 1947 to amend a reference under Section 10 of the Act and that accordingly the memorandum, dated 1 August 1955, amending the reference made on 21 June 1955 was without jurisdiction. The opponent-(sic) replies to these objections by saying (sic) Sri Kher was qualified to be appointed to (sic) tribunal, as 'a District Judge' within (sic) meaning of Section 7(3)(b) includes an (sic) District Judge : that the High Court's (sic) val to his appointment under Section 7(3)(c) (sic) not essential; that the constitution of (sic) industrial tribunal permanently simply (sic) administrative purposes is not invalid since (sic) the jurisdiction is conferred only when a (sic) reference is made under Section 10 and that to such (sic) a tribunal a dispute can be validly (sic) in terms of a reference under Section 10; and that the provisions of Section 10(4) are wide enough to amend a reference made under Section 10(1).

4. The above statement of facts and the contentions of the parties are sufficient to illustrate the issues which arise in this case between the parties and which require decision by this Court.

5. The first point which requires consideration is whether an Additional District Judge is included in the expression 'a District Judge 'used in Section 7(3)(b). Mr. Veda Vyas, learned Counsel appearing for the petitioner, contrasting the language of Clause (a) with that of Clause (b), said that whereas Clause (a) spoke of a Judge of a Court, namely, a Judge of a High Court, Clause (b) did not mention a Judge of a District Court but simply designated as eligible 'a District Judge; that according to the definition of 'District Judge' given in Section 3(17) of the General Clauses Act, 1897, a District Judge meant the Judge of a principal civil court of original jurisdiction and not a Judge or any Judge of a principal civil court of original jurisdiction: that this definition was an exclusive and not an inclusive definition and that the use of the word 'Additional' itself indicated on the maxim additio probat minoritatem that an Additional District Judge was a person quite different and inferior to a District Judge.

Learned Counsel for the applicant referred us to certain decisions where the question whether the expressions 'the District Magistrate' and 'the Deputy Commissioner' as used in certain Acts with reference to the exercise of certain powers included an Additional District Magistrate or an Additional Deputy Commissioner, was considered.

6. The learned Advocate-General asked us to construe the words 'a District Judge' as including an Additional District Judge for the purposes of Section 7 on the argument that the object of Section 7(3)(6) was not so much to throw the administrative competence and prestige attached to the office of a District Judge around the tribunal, as it was to secure that industrial disputes shall be adjudicated by a person having a certain standard of judicial experience and ability; that the required qualification had reference to the nature of duties discharged by the Judge as qualifying him by his experience for appointment to the tribunal under the Act; that as the powers of an Additional District Judge were the same as that of a District Judge and as he discharged the same judicial functions as a District Judge, there was no valid reason for excluding an Additional District Judge for appointment under Section 7(3)(b).

The learned Advocate-General proceeded to refer to Articles 217, 233 and 234 of the Constitution and pointed out that these provisions recognized three classes of Judges, namely, High Court Judges, District Judges, and Subordinate Judges and that under Article 236(a) of the Constitution, which was similar to Section 254(3), Government of India Act, 1935, the category of District Judges included amongst others Additional District Judges; that, therefore, when the Constitution itself treated an Additional District Judge as of the same statuses a District Judge, it would be unreasonable to hold that for the purposes of Section 7(3)(b) an Additional District Judge is not included in the expression 'a District Judge.'

Learned Advocate-General placed reliance on G.C. Bezfarua v. State of Assam 1954 Assam 161 : A.I.R. (V) 41 where it has been held that the words 'a District Judge' in Section 7(3)(b) include an Additional District Judge and that an Additional District Judge can be appointed to the tribunal without the approval of the High Court.

7. I do not find myself able to accept the view that the expression 'a District Judge' used in Section 7(3)(b) includes an Additional District Judge. In considering the question whether a District Judge includes an Additional District Judge, no assistance can be derived from cases dealing with the meaning of expressions such as 'District Magistrate' and 'Deputy Commissioner' used in Acts relating to quite different matters.

The cases Rameshwar Bhartia v. State of Assam 1952 S.C. 405 : A.I.R. (V) 39 and Hamid Ahmad v. Abdul Zahoor 1951 Hyd. 139 : A.I.R. (V) 38 cited to us by the learned Counsel for the applicant are therefore not very useful in throwing light upon the sense in which the expression 'a District Judge' is used in Section 7(3)(b), Industrial Disputes Act, 1947.

I cannot but think that the context in which the expression is used in Section 7(3)(b) and the definition of tm term 'District Judge' given in the General Clauses Act, 1897, are legitimate and safer guides to its meaning than other enactments. The term 'District Judge' has not been denned in Act XIV of 1947. The General Clauses Act, 1897, applies for the interpretation of the Act which is a Central Act. The definition of 'District Judge' given in Section 3(17), General Clauses Act, 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 exorcise of its ordinary or extraordinary original civil jurisdiction.

It will be noticed that the definition used the words 'shall mean' and not the word' 'includes' or the words 'shall include.' The definition does not, like the definition of 'Magistrate' given in Section 3(32), General Clauses Act, say that a District Judge shall include every person exercising all or any of the powers of a District Judge. It is thus an exhaustive definition. As the learned Counsel for the applicant said it is an exclusive and not an inclusive definition.

Therefore, on the definition, as it is worded, no one except 'the Judge of a principal Civil Court of Original Jurisdiction' can come within it. Now the use of the article 'the' before the word 'Judge' in the definition is very significant. It has a specifying or particularizing effect as opposed to the indefinite and generalizing force of 'a' and denotes that it is not any Judge of a principal Civil Court of Original Jurisdiction that can be termed as a District Judge but that only the sole presiding Judge of a principal Civil Court of Original Jurisdiction can be called a District Judge.

I do not think Article 236 of the Constitution of India, which says that in Chap. VI the expression 'District Judge' includes an Additional District Judge is in any way helpful in deciding the meaning of the expression 'a District Judge' as used in Section 7(3)(b).

The amplification given in Article 236 of the expression 'District Judge' is only for the purposes of Chap. VI of Part VI of the Constitution.

That chapter deals with the appointment, postings and promotions of District Judges, the appointment of persons other than District Judges in the Judicial services of a State and the control of the High Court over subordinate courts. That definition cannot clearly be applied where the question is whether under a certain enactment the office of a District Judge includes the office of an Additional District Judge or whether an Additional District Judge can exercise the powers of a District Judge under that enactment.

Indeed the fact that for the purposes of Chap. VI of Part VI of Constitution it became necessary to say specifically that the expression 'District Judge' includes an Additional District Judge only shows that according to the definition of 'District Judge' given in Section 3(17), General Clauses Act, which, under Article 367 applies for the interpretation of the Constitution, an Additional District Judge is not included in the term of 'District Judge.'

If it had been so included, it would not have been necessary to mention in Article 236 that the expression 'District Judge' includes an Additional District Judge.

The language actually used in Section 7(3)(b) lends support to the view that for the purposes of that provision an Additional District Judge is not included in the term 'A District Judge.'

The person designated as eligible under that class is described in the terms of the office which make him eligible. It is not a Judge of a principal Civil Court of Original Jurisdiction or a person exercising all or any of the powers of a District Judge who maybe appointed to the tribunal. It is a District Judge that is the Judge of a principal Civil Court of Original Jurisdiction who may become a member of the tribunal.

That the office of a District Judge is quite distinct from the office of an Additional District Judge is obvious enough. There cannot be more District Judges than there are districts in a State and a person holding the substantive rank of a District Judge is never appointed to the office of an Additional District Judge. An Additional District Judge is, in rank and grade, inferior and subordinate to a District Judge.

The reason for prescribing the eligibility in the terms of the office of a District Judge is intelligible. It will be seen that whereas a person eligible under Clause (a) or (b) of Section 7(3) can be appointed to the tribunal without the approval of the High Court, a person qualified for appointment under Clause (c) cannot be appointed except with the approval of the High Court.

By prescribing the eligibility under Clause (a) or Clause (b) in the terms of the office, the legislature treated the holding of the office itself as sufficient proof of the competence of the person for the appointment without the approval of the High Court. By these clauses the legislature intended that one whose duty it was to compose or pronounce upon matters of industrial dissension, should at least have the competence expected of a District Judge.

When, therefore, a person is or has been a District Judge, then his competence for appointment to the tribunal does not require to be certified by the approval of the High Court. I agree with the learned Advocate-General that the qualifications required by Section 7(3) have reference not so much to administrative ability as to the judicial ability of a person.

But the standard of Judicial ability required by Clause (b) of Section 7(3) is that of a District Judge. Now it is entirely erroneous to think that because a person has exercised all the powers of a District Judge, he has, therefore, attained the competence of a District Judge. Cases are not unknown in this State, as well as in other States, where persons who worked as Additional District Judges were not considered fit for being appointed as District Judges.

Again, there have been cases where persons who, after working for some time as Additional District Judges, reverted to their substantive posts of Civil Judges or Subordinate Judges. It cannot, therefore, be maintained with any degree of force that because a person has worked as an Additional District Judge, he must therefore be taken to have attained the standard of a District Judge, which is the basis of the qualification prescribed by Clause (b).

With all respect to the learned Judges of Assam High Court, I do not find myself in agreement with the view taken by them in 1954 Assam 161 A.I.R. (V) 41 that the words 'District Judge' in Section 7(3)(b) include an Additional District Judge, The learned Judges, contrary to the settled meaning1 of the words 'shall mean' and 'includes' in definition clauses, regarded the definition of 'District Judge' given in the General Clauses Act, 1897, and the Assam General Clauses Act, 1950, as an inclusive definition not excluding an Additional District Judge from its denotation. They gave no effect to the article 'the' used before the word 'Judge' in the definition. The learned Chief Justice of the Assam High Court observed that

the Act contemplates that with the advance and progress of industrial projects, the State Government may be called upon to constitute several industrial tribunals, If, therefore, a narrow interpretation is given to the section, the choice of the Government in constituting such tribunals would be unduly curtailed, specially in such States as the State of Assam where the number of District Judges is so few.

I must say that I feel I have had small success in following this reasoning. If the number of District Judges in a State is not large enough to enable the Government to appoint some of them to industrial tribunals, the difficulty can be got over by appointing persons qualified under Clause (c) with the approval of the High Court.

The paucity of District Judges can hardly be made a ground for extending the scope of the expression 'District Judge' so as to make it convenient for the Government to make appointments to the tribunals without the approval of the High Court. The learned Chief Justice further said that the whole object of the enactment was to provide, amongst others, for officers of the experience and status of a District Judge to preside over such tribunals and it would, therefore, be unreasonable to exclude an Additional District Judge from that category, who, for all practical purposes discharges the same judicial functions as a District Judge.

No doubt the object of Section 7(3) is that industrial disputes should be adjudicated by tribunals presided over by a person having at least the competence, experience and status of a District Judge. But as I have endeavoured to point out above, it is wrong to assume that because a person has exercised the powers of a District Judge, he has therefore attained the competence, experience and status of a District Judge.

The relevant question is not whether a person has or has not exercised the powers of a District Judge but it is whether he is holding or has held the office of a District Judge. Deka, J., who agreed with the Chief Justice referred to Article 236 of the Constitution to support the conclusion that the words 'a District Judge' in Section 7(3)(b) included an Additional District Judge.

This article, as I have shown above, cannot be applied to the interpretation of the term 'District Judge' used in Section 7(3)(b); the structure and language of Section 7(3)(b) and the definition of 'District Judge' given in Section 7(17) of the General Clauses Act, 1897, render, in my opinion, the conclusion irresistible that the expression 'a District Judge' used in Section 7(3)(b) does not include an Additional District Judge.

8. The non-applicant Sri Kher was thus not qualified for appointment under Section 7(3)(b). He was no doubt qualified under Clause (c) of Section 7(3).

It was, however, argued by Mr. Veda Vyas, learned Counsel for the petitioner, that under the proviso to Section 7(3) no appointment under Clause (c) to a tribunal could be made except with the approval of the High Court; that this provision was mandatory; that the High Court's approval to Sri Kher's appointment was not obtained and that therefore his appointment was void.

Learned Advocate-General rightly abandoned the demurrer raised in the return filed on behalf of the State that the fact that Sri Kher was released by the High Court for appointment as a judge of the industrial court under the Bombay Industrial Relations Act, 1946, as adapted in Madhya Bharat, impliedly constituted the High Court's approval to his appointment to the tribunal under Act XIV of 1947.

The plea was not persisted in before us and was plainly insupportable. He, however, resolutely pressed the contention that Section 7 of the Act standing by itself and more particularly in conjunction with Section 9 was directory only and not mandatory, and that, therefore, the omission on the part of the Government to obtain the High Court's approval to the appointment of Sri Kher could not invalidate his appointment.

The argument of the learned Advocate-General was that a provision laying down qualifications was always directory; that the question whether Section 7 should be considered absolute or as mere directory had to be determined not only on the language of Section 7 but also on the relation of that provision to the general object intended to be secured by the Act and on the consideration whether the nullification of the appointment for disobedience of the provision would involve general inconvenience or injustice without promoting, the real aim and object of the enactment.

Learned Advocate-General referred to the following passage in Maxwell on Interpretation of Statutes, 9th Edn., at p. 374:

It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice, and, when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to to the legislature. The whole scope and purpose of the statute under consideration must be regarded.

Reference was also made to Montreal Street Railway Co. v. Normundin 1917 P.C. 142 : A.I.R. (V)4 and it was further urged that the object of Act XIV of 1947 was to settle peacefully and quickly labour disputes; that it was in the interest of a planned national economy and in the interest of the public and the public peace that labour disputes should be settled without delay and that having regard to these objects it would cause general inconvenience and injustice without promoting the object of the enactment if it were held that the omission to follow rigorously the provisions of Section 7 made the appointment of a person to the tribunal ipso facto null and void.

Learned Advocate-General proceeded to say that Section 9(1) also pointed out to the conclusion that the omission to observe strictly the provisions of Section 7 was not fatal to the validity of an appointment made in substantial compliance with those provisions. He conceded that Section 9(1) did not preclude the High Court from considering the validity of an appointment in proceedings under Article 226 of the Constitution on the ground that the appointment was in violation of the provisions of Section 7.

It was, however, submitted that Section 9(1) did not take away the powers of the High Court or of civil courts to question the validity of an appointment made in utter non-compliance of the qualifications prescribed by Section 7 as a 'fraud' on those provisions; but that the provision was intended to facilitate the ex-peditious adjudication of labour disputes and the smooth progress of the proceeding's before the tribunal by preventing the appointment of any person as a member of a tribunal being-challenged for neglect to observe rigorously the provisions of Section 7. According to the learned Advocate-General, Section 9(1) modifies the rigour of Section 7 and makes it directory only.

9. I am unable to accede to the contentions advanced by the learned Advocate-General. There can be no quarrel with the principles to be borne in mind in considering whether an enactment is to be considered imperative or directory. There is no general rule as to when an enactment should be regarded as absolute and when merely as directory.

Each statute has to be judged by itself as a whole, regard being had, not only to its language but also to the objects and purposes for which it was enacted. As observed by Lord Chancellor in Liverpool Borough Bank v. Turner (1860) 45 E.R. 715 with regard to enactments expressed in affirmative language that

no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience.

The passage from Maxwell cited by the learned Advocate-General points out when nullification may be the consequence of disobedience of the command of the legislature. The decision of the Privy Council in 1917 P.C. 142 : A.I.R.(V) 4 only illustrates the statement of Maxwell. In that case a jury's verdict was attacked on the grounds that the trial was coram non-judice and the verdict, a nullity, because certain elaborate and minute provisions made for the constitution of jury had been disregarded in numerous respects.

The Privy Council held that no prejudice had been caused to the objector and that in the absence of any such prejudice it would cause the greatest public inconvenience if it were held that neglect to observe the provisions of the statute made the verdict of all juries taken from the list ispo facto null and void so that no jury trial could be held until a duly revised list had been prepared. Maxwell has drawn a distinction between cases whore the prescriptions of the Act affect the performance of a duty and where they relate to a power and has further observed at p. 374 that

where powers, rights and immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the legislature.

As to the inference to be drawn from negative language, the settled rule is that if the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, then those requirements are in all cases absolute and the neglect to obey or fulfil them exactly will invalidate the whole proceedings [see Craies on Statute Law 5th Edn., at p. 243].

10. Construing Section 7(3) in the light of the above principles, there can be no doubt as to the mandatory nature of its provisions. The object of Act XIV of 1947 is no doubt to settle peacefully and quickly labour disputes. But the settlement is to be within the framework of the Act. The adjudication of industrial disputes must be by a tribunal constituted in accordance with the provisions of the Act.

Now, Section 7(3) emphatically provides that where a tribunal consists of one member only, that member, and where it consists of two or more members, the chairman of the tribunal shall be a person qualified under Clause (a) or Clause (b) or Clause (c). The qualifications enumerated in the said clauses do not admit of exceptions.

Section 7(3) does not say that the person to be appointed to a tribunal shall so far as possible fulfil those qualifications. There is thus no question of substantial compliance with the qualifications prescribed. A person is either qualified under any of the clauses or be is not. There can be no degrees of compliance in this respect.

Learned Advocate-General himself did not go so far as to argue that a person not possessing any of the qualifications prescribed by any one of the three clauses could be appointed to the tribunal. In effect, therefore, his argument that Section 7(3) is not absolute comes to this: that the condition of obtaining the High Court's approval to the appointment of a person who is qualified under Clause (c) to the tribunal is directory.

I do not find any justification either in the express language of the proviso to Section 7(3) or in the policy of the Act for holding that the condition of obtaining the High Court's approval is merely directory. The words in the proviso are negative words and are clearly prohibitory of the appointment of a person qualified under Clause (c) being made without the approval of the High Court.

It says in no uncertain terms that no appointment to a tribunal of any person not qualified under Clause (a) or Clause (b) shall be made except with the approval of the High Court. There are no qualifications attached to the condition of obtaining the approval of the High Court.

It would indeed be difficult to conceive how the legislature could more plainly have indicated the intention that the High Court's approval to the appointment of a person qualified under Clause (c) was absolutely essential. It is of some importance to notice that the Industrial Disputes Act XIV of 1947 was amended by Act XL of 1951. Before this amendment, Section 7 read as follows:

(1) The appropriate Government may constitute one or more industrial tribunals for the adjudication of industrial disputes in accordance with the provisions of this Act.

(2) A tribunal shall consist of such number of members as the appropriate Government thinks fit. Where the tribunal consists of two or more members, one of them shall be appointed as the chairman.

(3) Every member Of the tribunal shall be an independent person-

(a) who is or has been a Judge of a High Court or a District Judge, or

(b) is qualified for appointment as a Judge of a High Court:

Provided that the appointment to a tribunal of any person not qualified under part (a) shall be made in consultation with the High Court of the province in which the tribunal has or is intended to have, its usual place of sitting.

The section was recast into the existing form by the amending Act. The difference in the old proviso and the present proviso is worthy of note. Under the proviso to Section 7 as it stood before the amendment, the final decision as to the choice of a person qualified for appointment as a Judge of a High Court, for appointment to the tribunal, rested with the Government; the Government was only required to consult the High Court before making the appointment.

Now consultation implied that Government should not generally ignore the advice of the High Court except for good reasons and that if the Government did not agree with the opinion of the High Court, it should confer with the High Court on the matter, so that a proper and satisfactory decision as to the person to be appointed may be reached.

The reason for providing that the appointment of such a person should be made in consultation with the High Court was to secure that the person to be appointed, though technically eligible for appointment as a Judge of a High Court, really possessed the requisite judicial ability; and the High Court alone could express an opinion on the judicial ability of the person.

In actual practice many State Governments reduced the condition of consulting the High Court to a mere formality by inviting the opinion of the High Court and disregarding it, and thus defeating the very object with which the proviso was enacted.

It, therefore, became necessary to make the High Court the sole Judge as to the suitability and competence of a person qualified for appointment as a High Court Judge, to the tribunal. The new proviso carries out this object by laying down that no appointment to a tribunal of any person not qualified under Clause (a) or Clause (b) shall be made except with the approval of the High Court.

The approval of the High Court to the appointment of a person qualified under Section 7(3)(c) is thus not a matter of form but of substance. It is a sine qua non to the appointment. The combined effect of Section 7(3)(c) and the proviso to it is that under that clause a person can be appointed to a tribunal only if he satisfies two conditions, namely, first he is qualified for appointment as a Judge of the High Court and secondly his suitability for appointment of the tribunal Has been approved by the High Court.

The language of the proviso seems to me so plain that it is impossible for us to come to any conclusion other than, that the condition. of obtaining the High Court's approval to the appointment to a tribunal of a person qualified under Clause (c) is mandatory.

11. The considerations on which their lordships of the Privy Council held in 1917 P.C. 142 : A.I.R. (V) 4 that certain elaborate and minute enactments for the due revision of the jury list were directory, have no applicability here. The objects of the elaborate provisions for the mode of preparing and revising the jury list considered in the Privy Council, were: First to distribute the burden of jury service equally between all liable to it; secondly to secure for the use of the courts effective list of jurors likely to attend when called; thirdly to prevent the selection of particular individuals for any jury; commonly called backing.

In that case the question of the effect of a person, who had not the qualifications required by law for being a juror, being included in the jury trying an action did not arise. This is clear from the observations of Sir Arthur Channel, who delivered the judgment of the Board and who referring the Canadian case 3 Rex v. McCrae Q R. 16 K.B. 193 said:

Rex v. McCrae also quoted was a case of murder, and after a verdict of guilty the conviction was quashed on grounds going to the merits, but it was also held by a majority of the Court that the swearing and inclusion in the jury of a person assigned by mistake, but whose name was not written in the panel of jurors, and who had not the qualifications required by law for being one of the jury, is illegal, and a verdict returned by a jury so composed is null and should be quashed. This seems to have little to do with the matter, as here no juror is shown to have been disqualified, and if one had been, probably Monet, J., would have held it to be 'prejudice.'

It is thus plain that the Privy Council decision in 1917 P.C. 142 : A.I.R. (V) 4 is not an authority for the proposition that a statutory provision prescribing in a mandatory language qualifications for an appointment can be treated as merely directory on considerations of convenience and justice.

The words of Section 7(3) are mandatory and it would altogether defeat the main object of the provision of having the adjudication of industrial disputes by a tribunal presided over by a person having a certain judicial ability, if it were held that the provision was merely directory and the State Government was not obliged to obtain the approval of the High Court to the appointment of a person qualified under Clause (c) to the tribunal and the Government alone could determine his suitability for the appointment.

The question as to whether the present Section 7(3) is absolute or whether it is directory is not covered by any decision. But it may be pointed out that in Khusi Ram Dwarka Nath Weaving Mills, Amritsar v. State of Punjab 1953-54-5 F.J.R. 402 and in the Mewar Textile Mills, Ltd. v. Industrial Tribunal 1951 Raj. 161 : A.I.R. (V) 38 it was held that the proviso to the old Section 7(3) requiring the appointment to a tribunal of any person not qualified under Clause 3(a) to be made in consultation with the High Court was mandatory and an appointment made without consulting the High Court was invalid.

The Rajasthan case was no doubt reversed by the Supreme Court in State v. Mewar Textile Mills, Ltd., Bhilwara 1954 S.C. 396 : A.I.R. (V) 41 : 1954 I L.L.J. 611 but it was on a different ground. The case of the proviso before us is stronger, inasmuch as it says in negative and prohibitory language that no, appointment to a tribunal of any person not qualified under Clause (a) or Clause (b) shall be made except with the approval of the High Court.

12. As to the contention of the learned Advocate-General resting on Section 9(1), I am frankly unable to see how that section has the effect of relaxing or modifying the imperative provisions of Section 7(3). Section 9(1) provides that no order of the appropriate Government appointing any person as a member of a board, court or tribunal shall be called in question in any manner.

This apparently is intended to exclude inquiry as to the nature and lawfulness of the order of the Government, however flagrantly the order may exceed the powers given by the Act. The provision has no relation whatever to ho mandatory or directory nature of the provision under which the Government may make an order.

If the intention of the legislature was to make the qualifications for the eligibility of a person to a tribunal and the condition of the High Court's approval directory only, it would have been stated in express language in the Section 7(3) itself and not in a provision dealing with the finality of an order of the Government constituting a board, court or tribunal.

It is of the greatest importance to bear in mind the distinction between the nature of the statutory conditions under which an order may be made and the finality attached to an order made or purported to have been made after complying with those conditions. The conditions under which an order may be made if absolute, do not cease to be so, if the order cannot be called in question in any banner and is placed beyond any judicial review whatever.

The argument of the learned Advocate-General assumes that the question whether a provision is imperative or directory depends on whether an act done or order made under those provisions is or is not open to judicial review. This clearly is not the test for determining whether a provision is absolute or directory.

If I understood him right, the learned Advocate-General did not dispute that the appointment of a person in flagant violation of Section 7(3) would be open to challenge. If this be so, and if as I have pointed out above, the Condition of obtaining the High Court's approval cannot be dispensed with so that tie appointment of a person to a tribunal made without the approval of the High Court, where it was necessary, could be called in Question then on the test involved in the argument of the learned Advocate-General the provision as to the approval of the High Court would be mandatory.

I am, therefore, unable to accept the contention of the learned Advocate-General that Section 9(1) modifies and affects the absolute obligation otherwise imposed by Section 7(3) of the Act. It is not necessary for me to consider the question as to what is the scope of Section 9(1) if it is regarded-as I think it must be regarded-as a provision to prevent any question of the validity of an order of the Government being raised in any manner.

That it cannot in any way affect the powers of this Court under Article 226 is clear enough. The question as to whether it precludes altogether civil courts from examining the validity of an order of the Government even if it goes beyond the statutory conditions under which alone it could be made, or whether it is open to them to inquire whether the order is consistent with the main purpose of the Act and made after complying with the defined conditions under which it could be made, does not arise in the present case.

I may, however, call attention to the decision in Chandmal Jaskaran v. Chhaganlal 1951 Madh. B. 63 : A.I.R. (V) 38 without expressing any final opinion, whore there are observations which support the view that where a statute provides that an order shall be made only if certain conditions are satisfied and also contains a provision making the order final and placing it beyond any judicial review, then the finality would attach only to an order made after compliance with the conditions precedent and not to an order which goes beyond the statutory conditions and has without justification obtained the semblance of an order under the provisions. This view is supported by many dicta in Minister of Health v. R.; Ex parte Yaffe 1931 A.C. 494.

13. In my judgment the proviso to Section 7(3) is mandatory and it was obligatory for the State to have obtained the approval of the High Court to Sri Kher's appointment to the tribunal as a person qualified under Clause (c). As this approval was not obtained, it must be held that Sri Kher's appointment was void and the proceedings taken by him for the adjudication of an industrial dispute between the petitioner and the opponent 3 are also null and void.

14. This conclusion strictly renders it unnecessary for me to consider the further contention of the applicant that Sections 7 and 10 contemplate the appointment of an ad hoc tribunal for the adjudication of a specific dispute and that, therefore, the constitution by the Government of a permanent industrial tribunal in abstract without any reference to the industrial dispute between the petitioner and the opponent 3 or for the matter of that to any industrial dispute whatever, was invalid.

But if it be material to consider the contention, I must say it is untenable and sufficiently answered by the decision of the Supreme Court in Minerva Mills, Ltd., Bangalore v. Workers of the Minerva Mills 1953 S.C. 505 : A.I.R. (V) 40 : 1954 I L.L.J. 119. Section 7 which empowers the Government to constitute industrial tribunals for the adjudication of industrial disputes does not contain any limitation as to 'the time or number of disputes with reference to which a tribunal can be constituted. That provision gives wide discretion to the Government in the constitution of tribunals. The Government may nominate a certain person to constitute so to say a standing industrial tribunal for the adjudication of industrial disputes in the State whenever they arise and may under Section 10 refer to such tribunal disputes as and when they arise, or it may constitute a tribunal for a particular case or cases.

Section 10 is not concerned with the constitution of industrial tribunals. It deals with the question of reference of disputes to boards, courts or tribunals. The tribunal gets jurisdiction to adjudicate a specific dispute when the Government by an order in terms of Section 10 refers the dispute to the tribunal for adjudication.

The reference can only be made when a dispute exists or is apprehended. But from this it does not follow that a tribunal under Section 7 can be constituted only when some specific dispute exists or is apprehended and not before. No doubt an industrial tribunal will not be appointed in the State if no industrial dispute exists or if none is apprehended.

But this is quite different from saying that the constitution of the tribunal must be notified with reference to a particular dispute proposed to be referred and that if other disputes are intended to be referred to it, then it must be notified separately for each such dispute. In 1953 S.C. 505 : A.I.R. (V) 40 : 1954 I L.L.J. 119 the Mysore Government first constituted an industrial tribunal for a period of one year.

Several disputes were referred to the tribunal for adjudication. When the period of the term of the tribunal expired, many disputes referred to the tribunal remained undisposed of. A second tribunal was, therefore, constituted and the disputes left undisposed of by the first tribunal were referred to it for adjudication.

The validity of the reference of these disputes to the newly constituted tribunal was challenged in the Supreme Court on the ground that under the Industrial Disputes Act there was no power in the Government to appoint a tribunal for a limited duration; that its power was only to constitute a tribunal and refer certain disputes to it; that a tribunal once appointed ceased to function only after the reference made to it had been exhausted, i.e., after it had given its award; and that there was no power in the Government, when it had made a reference under Section 10 of the Act to withdraw it from one tribunal and to hand it over to another tribunal. Mahajan, J. (as he then was), who delivered the judgment of the Court, rejected these contentions observing that Section 7 did not restrict or limit the powers of the Government in any manner and did not provide that a tribunal could not be constituted for a limited period or for deciding a limited number of disputes, that no restriction was placed on the powers of Government regarding the constitution of tribunals, and Government was given very wide discretion and it could appoint them for any limited time or for a particular case or cases as it thought fit and as the situation in a particular area or a particular case demanded.

Consistently with these observations, it cannot clearly be held that under the Act, the constitution of a tribunal can only be with reference to a particular dispute and for its adjudication alone and before it arises. For if it were so, no limit could be placed on the duration of the tribunal and it must function until it has made an award. Learned Counsel for the applicant pressed into service the observation of Mahajan, J., that

from the very nature and purpose for which industrial tribunals arc constituted, it is quite clear that such tribunals are not to be constituted permanently. It is only when some industrial dispute arises that such tribunals are constituted and normally such tribunals function so long as the disputes referred to them are not disposed of

and urged that under Section 7, a permanent industrial tribunal could not be constituted. In my judgment, in the context in which it has been made, the observation only means that normally a tribunal may be constituted when an industrial dispute arises, and not that a tribunal cannot be constituted under the Act unless a dispute exists.

On the other hand, the further observation of Mahajan, J., in Para. 10 of the judgment that

substantially the notification must be taken to have been made under Section 7 and in express language it says that the Government is pleased to constitute an industrial tribunal for adjudication of industrial disputes in Mysore State in accordance with the provisions of the Act,

indicates that the constitution' of an industrial tribunal for adjudication of industrial disputes in any State without any reference to any particular dispute would be valid under Section 7. In my view, there is nothing in Section 7 or Section 10 to prevent the Government from appointing a permanent industrial tribunal 'for administrative purposes' as the learned Advocate-General put it.

When an industrial dispute is referred to such a tribunal under Section 10, the tribunal acquires jurisdiction to adjudicate upon the dispute and can validly function as a tribunal constituted for the adjudication of that dispute, until the award is made.

After the reference is exhausted, that is, after the award is made, the tribunal though a standing one for the adjudication on a proper reference of disputes arising subsequently, cannot be said to exist so far as the particular dispute adjudicated is concerned. The fact that the reference and the constitution of the tribunal is not by a composite notification but by separate notifications is merely a matter of form and not of substance.

15. Learned Counsel for the petitioner referred us to Lloyds Bank, Ltd. v. Lloyds Bank Indian Staff Association 1953-54-55 F.J.R. 149 and the Rules 3 and 5 of the rules framed under Section 38 of the Act, as supporting his contention that under Section 7 a permanent tribunal cannot be appointed. I do not think that this case lays down any such proposition.

The question that was considered therein was whether a writ could be issued under Article 226 of the Constitution of India for quashing an award made by All-India Industrial Tribunal (Bank Disputes) after the tribunal had ceased to exist. It was held by the Calcutta High Court that as the tribunal had ceased to exist, no direction could be made under Article 226 for quashing the award. When the matter went up before the Supreme Court, it was argued that

notwithstanding the tribunal was not functioning, it continued in a sort of suspended animation inasmuch as the Government, on a proper construction of Section 7 of the Industrial Disputes Act, must be deemed to have brought into being not an ad hoc tribunal to adjudicate upon the particular disputes referred to it but a permanent tribunal though functioning intermittently.

The Supreme Court rejected this argument agreeing with the view taken by the Calcutta High Court. It is plain from the judgment in Lloyds Bank case, that the real question that was decided therein was that the tribunal ceases to exist in relation to a particular dispute referred to it when the reference made to it is exhausted, i.e., after it has given its award.

It is only for this purpose that the case can be regarded as an authority see Quinn v. Leathem 1901 A.C. 495. The question whether a tribunal can be constituted under Section 7 without any reference to any industrial disputes and whether to such a tribunal a reference can be made under Section 10 did not arise for consideration in Lloyds Bank case. The rules referred to by the counsel for the applicant, nowhere say that the appointment of a tribunal cannot be notified before a dispute arises.

16. As to the objection that the Government had no jurisdiction to amend the reference made on 21 June 1955 by a subsequent memorandum, it is sufficient to say that the language of Section 10(4) is wide enough to permit the amendment. Under Section 10 a matter not covered by a reference can, by an independent subsequent reference, be referred to the tribunal for adjudication. If an additional reference can be made, then there is no reason why an amendment of the original reference should not be allowed.

In this connexion I need only refer to the decision In South India Estate Labour Relations Organization v. State of Madras 1955 Mad. 45 : A.I.R. (V) 42 where a Division Bench of the Madras High Court has held that under Section 10 the Government has the power to amend a reference. In that case the learned Judges of the Madras High Court observed:

The last point urged is that the Government had no jurisdiction under Act XIV of 1947 to amend a reference made under Section 10 of the Act and that accordingly the memorandum No. 59079, dated 25 June 1952, amending the reference made on 24 March 1952 is without jurisdiction. The objection is one of form and is without substance. It would have been open to the Government to make under Section 10 an independent reference concerning any matter not covered by the previous reference. That it took the form of an amendment to the existing references and not an additional reference is a mere technicality and which does not merit any interference in these proceedings.

17. For the foregoing reasons I have reached the conclusion that the appointment of Sri Kher to the tribunal was void and that there must be a judgment of ouster against him and the proceedings taken by him In connexion with the dispute between the applicant and its labour union must be quashed.

A direction shall, therefore, issue to Sri Kher restraining him from functioning as a tribunal under Act XIV of 1947 and quashing the proceedings taken by him in the dispute out of which this petition arises. In the circumstances of the case there will be no order as to costs of this petition.

18. Abdul Hakim Khan, J.

My learned brother in his able and detailed order has recorded all the arguments of the counsel of the parties and noted all the authorities that were cited at the bar. I am in complete accord with the view he has taken and without travelling the ground already covered by him, I would merely add that to me the question appears to be simple enough, yet in the lengthy arguments addressed to us, no reference was made to the most fundamental rule of construction, namely, that a statute is to be expounded according to its obvious meaning.

In Income tax Commissioner v. Pemsel 1891 A.C. 531 (534), it has been observed that if the words of a statute are precise and unambiguous, then what is necessary is to expound those words, in their natural and ordinary sense; the words themselves in such cases best declare the intention of the legislature. Section 7(3) of the Industrial Disputes Act of 1947 reads as follows:

Where a tribunal consists of one member only, that member, and where it consists of two or more membrs, the chairman of the tribunal, shall be a person who

(a) is or has been a Judge of a High Court; or

(b) is or has been a District Judge: or

(c) is qualified for appointment as a Judge of a High Court.

19. Bearing the elementary rule of construction in mind, there is no doubt that the legislature in this section has used absolutely unambiguous words and it is almost axiomatic to say that a District Judge means a District Judge and no other Judge.

It is said that when the language of a statute is plain, the task of interpretation can hardly be said to arise. Vattel in his book, Law of Nations, Section 263, has said that

it is not allowable to interpret]what has no need of interpretation.

This I regard to be precisely the case in the matter under consideration.

20. In 1954 Assam 161 : A.I.R. (V) 41 the learned Chief Justice of Assam High Court has observed that

The Act contemplates that with the advance and progress of industrial projects, the State Government may be called upon to constitute several industrial tribunals. If therefore, a narrow interpretation is given to the section, the choice of the Government, in constituting such tribunals, would be unduly curtailed, specially in such States as the State of Assam, where the number of District Judges is so few.

This passage in the judgment suggests that there is a paucity of District Judges in Asssam and it is this local condition that has influenced the interpretation, resulting in equating the District Judge with Additional District Judge. With respect I venture to suggest that if enough District Judges are not available, perhaps the difficulty can be tided over by the Government by seeking the approval of the High Court under Section 7(3)(c) of the Act.

21. I agree with my learned brother in the order proposed by him.


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