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. <NAME>, J.

The first respondent, <ORG> is an association of Member practising in the <ORG> in the State of Maharashtra. The Association filed a writ petition before <ORG> challenging the appointment of respondents 2 and 3 who were Assistant Commissioners of Labour, as Judge of <ORG> 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 <ORG>, 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 <ORG>. A learned Single Judge of <ORG> 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 <ORG>. Being aggrieved b y this judgment and order, the appellant-State of Maharashtra preferred an appeal before <ORG> of <ORG> 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 <ORG> under the Industrial Disputes Act as laid down in Section 7 were as follows:

(a) that he was or had been a judge of <ORG>; or

(b) that he h ad for a period of not less than three years been a District Judge or an Additional District Judge ; or

(c) that he had held the office of the Chairman or any other Member of <ORG> or of any <ORG> 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 <ORG> 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 <ORG> were added. These are :

"(d-1) he has practised as an advocate or attorney for not less than seven years in <ORG> or any court subordinate thereto or any <ORG> or Tribunal or <ORG> 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 <ORG> 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 <ORG> 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 <ORG> 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 <ORG> unless :

(a) he had held any judicial office in India for not less than five years; or

(b) he had practised as an Advocate or Attorney for not less than seven years in <ORG> 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 <ORG>, or of Assistant Commissioner of Labour under <ORG>, 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, <ORG> is entitled to constitute one or more <ORG> 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 <ORG> 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 <ORG> to appoint Assistant Commissioners of Labour working under <ORG> for a period of not less than five years and holding a law degree, to the office of the presiding officers of <ORG>. The impugned Notification of 8th of March, 1979, therefore, was issued appointing two such persons as presiding officers of <ORG> at Sholapur and Pune which has been challenged in these proceedings. According to the first respondent- Association, appointments as presiding officers of <ORG> are appointments to the judicial service of the <ORG> and are, therefore, governed b y Article 234 of the Constitutions.

There is not much difficulty in holding that <ORG> performs judicial functions and is a <ORG>. The Labour <ORG> 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 <ORG>s are, therefore, courts and decide disputes that are civil in nature.

In the case of <CITATION> (1950 SCR 459), this Court considered whether <ORG> w as a court. It said that one cannot go by mere nomenclature. One has to examine the functions of a <ORG> and how it proceeds to discharge those functions. It held that and Industrial <ORG> had all the trappings of a court and performed functions which cannot but be regarded as judicial. The Court referred to the Rules b y which proceedings before the <ORG> 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 <NAME> v. <NAME> [(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, <ORG> 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 <ORG> as defined in Article 236 of the Constitution.

Part VI, Chapter VI, of the Constitution of India deals with courts subordinate to <ORG>. 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 <ORG> 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 <ORG>.

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 <CITATION> of the General Clauses Act, 1897 and <CITATION> 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 <ORG> in the exercise of its ordinary or extraordinary original civil 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 <ORG>, 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 <ORG> 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 <ORG> 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 <ORG> 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 <ORG> and <ORG>. 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 <CITATION> [AIR 1966 SC 1987] this <ORG> 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 <ORG> 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 <ORG> 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 <ORG> 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 <ORG> was at pains to emphasis the Constitutional scheme for independence of the judiciary. It said that the acceptance of this (i.e. <ORG>'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 <ORG>, 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 <ORG>, 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.

<ORG> has, therefore, correctly interpreted the observations of this <ORG> in <NAME> 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 <CITATION> . [AIR 1968 SC 1495], this Court observed that the intention of the <ORG> 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 <ORG> 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 <ORG> 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 <ORG> set up under different Acts which were before the <ORG> in each case was a judicial body or a court, and whether it was a court subordinate to the High <ORG>. <CITATION> . [AIR 1951 SC 1559], the <ORG> 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 <CITATION> . [AIR 1977 Bombay 384], the term "courts" was held to cover all tribunals which were basically courts performing judicial functions giving judgments which were binding and exercising sovereign judicial power transferred tot hem by the <ORG>. It was held that High <ORG> could exercise its jurisdiction under Article 227 over such tribunals. A Full Bench of the Gujarat High <ORG> in the case of <NAME> & etc. v. <ORG>, <ORG>, etc. [1986 Lab I.C. 1749] held that Labour <ORG>s and Industrial <ORG>s were courts for the purposes of contempt of <ORG>s Act and were also courts subordinate to the High <ORG>.

<ORG> in the case of <ORG> Ghaziabad v. State of Uttar Pradesh & Ors. [1985 Lab. I.C. 1633] has, however, held that the presiding officer of <ORG> does not belong tot he judicial service of the State as defined in Article 236. <ORG>'s judgment has retied upon the decision of the <ORG> in <NAME> 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 <ORG> appears to b e too narrow a view of the term "judicial service". In <NAME> case (supra), t his <ORG> 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 <ORG> in the present case is justified in rejecting the narrow view taken in that judgment.

In the case of <CITATION> . [(1992) 2 SC 428], this Court had to consider qualifications for the purpose of appointment as a judge of <ORG> 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 <ORG>, a person must hold a judicial office which must be a part of the judicial service of the <ORG>. After referring to the cases of <ORG> (supra) and <ORG>sman (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 <ORG> 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 <ORG> Judges and the judges of <ORG> can be held to belong to judicial service. The hierarchy contemplated in the case of <ORG> judges is the hierarchy of <ORG> judges and <ORG> judges with eh <ORG> judges holding the superior position of District Judges. The <ORG>s have also been held as subject to <ORG>'s power of superintendence under Article 227.

The decision in the case of <CITATION> . [(1995) 5 SC 75] is also cited before us. It dealt, inter alia, with the inter-relationship of jurisdiction of <ORG> and <ORG> 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 <ORG> 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 <ORG> in consultation with <ORG>. Article 233(2) has been interpreted as prescribing that "a person in the service of the <ORG> or the <ORG>" can refer only to a person in the judicial service of the <ORG> or the <ORG>. 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 <ORG> after consultation with the <ORG> Public Service Commission and with <ORG>. Article 235 provides that he control over district courts and courts subordinate thereto shall be vested in <ORG>; 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. <ORG> has rightly come to the conclusion that the persons presiding over <ORG> would constitute a judicial service so defined. Therefore, the recruitment of <ORG> 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.