Appeal No 1164 of 1970
Appeal by Special Leave from the Order dated the 5th Sep tember 1969 of the Punjab  Haryana High Court in SCA No 197 of 1968 Naunit Lal Girish Chandra and RN Sachthey for the appel lant
SB Wad for respondent No 1
The Judgment of the Court was delivered by CHANDRACHUD J
The 1st respondent is a co operative transport society carrying on transport business at Kaithal District Karnal State of Haryana
The Society terminated the services of respondents 3 and 4 who were working with it as conductor and driver respectively
The State of Punjab on June 22 1964 referred the dispute arising out of the dismissal of respondents 3 and 4 under section 10 of the Indus trial Disputes Act 14 of 1947 for the adjudication of the Labour Court Rohtak
That Court was then presided over by Shri Jawala Dass
On Shri Dass s retirement Shri Hans Raj Gupta was appointed on June 4 1965 as the presiding Officer of the Court
The reference was thereafter heard by him and on April 16 1966 he gave an award directing the reinstatement of respondents 3 and 4 with 50 backwages from the date of their dismissal until the date of reinstatement
The Presiding Officer of the Labour Court is the 2nd re spondent to this appeal
Being aggrieved by the award the 1 st respondent filed Writ Petition No 1575 of 1966 in the High Court of Punjab and Haryana under articles 226 and 227 of the Constitution praying that the award given by the 2nd respondent be set aside on the ground inter alia that he was not qualified to hold the post of a Judge of the Labour Court and therefore the award was without jurisdiction
The Writ petition having been allowed by a Division Bench by its judgment dated March 26 1968 the State of Haryana has filed this appeal by special leave
The Presiding Officer of the Labour Court was impleaded to the Writ Petition as the 2nd respondent
308 The only question for decision in this appeal is whether Shri Hans Raj Gupta who gave his award as the presiding Officer of the Labour Court was qualified for being appoint ed as a Judge of the Labour Court
Section 71 of the provides that the appropriate Gov ernment may constitute one or more Labour Courts for the adjudication of Industrial disputes relating to any matter specified in the Second Schedule to the Act
A Labour Court under s72 shall consist of one person only to be appointed by the Government
Sub section 3 of section 7 reads thus 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 48 of 1950 or of any Tribunal for a period of not less than two years or d he has held any judicial officer 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
It was common ground in the High Court that Shri Gupta did not satisfy the qualifications laid down in any of the clauses a b c and e of section 73
It was however urged in the High Court in the first instance that Shri Gupta had held a judicial offical in India for not less than seven years and was therefore qualified for being appointed as a Judge of the Labour Court under clause d of s7 3 
This argument was made before the learned Chief Justice of the High Court who while hearing the Writ Peti tion singly felt that the question raised was of public importance
He therefore referred the matter to a Divi sion Bench
The contention that Shri Gupta was qualified to hold the office of a Judge of the Labour Court under clause d of s73 was however given up by the State before the Division Bench
Before us the learned counsel for the appellant the State of Haryana rightly did not pursue the unstatable contention
Shri Hans Raj Gupta was initially working as an Upper Division Clerk cure Head Clerk
Thereafter he worked from January 14 1947 to October 19 1954 as the Registrar to the Pensions Appeals Tribunal Jullundur Cantonment
After relinquishing that post he was reverted as an Upper Divi sion Clerk cum Head Clerk which office he held till Febru ary 17 1957
Subsequentiy he was appointed as an Assistant Settlement officer in which post he worked fill September 1962
It is obvious and requires no clever argument to show that Shri Gupta was holding clerical posts which with some courtesy may 309 be described as posts calling for and furnishing administra tive experience
As an Upper Division Clerk even if the duties of that post were combined with those of the Head Clerk Shri Gupta was nowhere in the shadow of a judicial office
As a Registrar of the Pensions Appeals Tribunal Jullundur Cantonment he was admittedly discharging adminis trative functions
A circumstance which seems to have blurred the perception of the State Government perhaps was that the Pensions Appeals Tribunal was a judicial or quasi judicial body and since Shri Gupta was closely associated with it does not matter in what capacity he could be said to hold a judicial office
Administrative proximity with judicial work was regarded as an excuse good enough to elevate the administrator into a holder of judicial office
This was a wholly misconceived approach to a matter of some moment for were it so many a judicial clerk would be qualified to be appointed to a judicial office
Having never held any judicial office Shri Gupta totally lacked judicial experience and was incompetent to discharge the functions of a Judge of the Labour Court
His appointment was therefore illegal and his award without jurisdiction
We are happy to note that the State Government did not take the time of the DiVision Bench of he High Court and of this Court in arguing an impossible proposition
Nevertheless the award given by Shri Gupta as the Presiding Officer of the Labour Court is defended by the State Government on the Plea that Shri Gupta s appointment cannot be challenged in a collateral proceeding filed in the High Court for challenging the award
Reliance is placed in support of this submission on the following passage in Cooley s A Treatise on the Constitutional Limitations 8th edn vol 2 pages 1255 1358 An officer de jure is one who possessing the legal qualifications has been lawfully chosen to the office in question and has fulfilled any conditions precedent to the performance of its duties
By being thus chosen and
observing the precedent conditions such a person becomes of right entitled to the pos session and enjoyment of the office and the public in whose interest the office is creat ed is entitled of right to have him perform its duties
If he is excluded from it the exclusion is both a public offense and a private injury
An officer de lure may be excluded from his office by either an officer de facto or an intruder
An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence though having no right in fact
His color of right may come
from an election or appointment made by some officer or body having colourable but no actual right to make it or made in such disregard of legal requirements as to be ineffectual in law or made to fill the place of an officer illegally removed or made in favor of a party not having 310 the legal qualifications or it may come from public acquiescence in the officer holding without performing the precedent conditions or holding over under claim of right after his legal right has been terminated or possibly from public acquiescence alone when accompa nied by such circumstances of official reputa tion as are calculated to induce people without inquiry to submit to or invoke offi cial action on the supposition that the person claiming the office is what he assumes to be
An intruder is one who attempts to perform the duties of an office without au thority of law and without the support of public acquiescence
No one is under obligation to recognise or respect the acts of an intruder and for all legal purposes they are absolutely void
But for the sake of order and regularity and to prevent confusion in the conduct of public business and in security of private rights the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State of by some one claiming the office de lure or except when the person himself attempts to build up some right or claim some privilege or emolument by reason of being the officer which he claims to be
In all other cases the acta of an officer de facto are as valid and effectual while he is suffered to retain the office as though he were an officer by right and the same legal consequences will flow from them for the protection of the public and of third parties
This is an important principle which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally
 Equally strong reliance was placed by the State Govern ment on a decision of the Ontario Supreme Court in Rs Toronto N Co City of Tornoto 1 in which after an exami nation of several American and other decisions Meredith CJO observed That it is not open to attack in a collateral proceeding the status of a de facto Judge having at least a colourable title to the office and that his acts are valid is clear I think on principle and on authority and it is also clear that the proper proceeding to question his right to the office is by quo warranto information PP
551 552 Learned counsel for the State Shri Naunit Lal further drew our attention to a decision of the High Court of Tra vancore Cochin in Bhaskera Pillai and Ant
State2 which relying upon the passage in Cooley s Constitutional Limitations and the Canadian case held that the appoint ment of the Chief Justice of that Court could not be ques tioned collaterally in a proceeding for leave
to appeal to the Supreme Court against the decisions rendered by him
Some sustenance was also sought to the same argument from a decision of a Full Bench of 1 46 Dominion Law Report 547
2 1950 5 DLR Travancore Cochin 382
311 the Allahabad High Court in Queen Empress vs Garsa Sam1 in which it was held that where a person had in fact been exercising all the functions of a Judge of the High Court the appointment even if apparently ultra vires must never theless be presumed in the absence of fuller information to have been legally made in the exercise of some power unknown to the Court vested in the Secretary of State for India
Broadly the starting point and the primary basis of these decisions is the passage from Cooley s Constitutional Limitations which we have extracted above
That passage says and means that the acts of officers de facto cannot be suffered to be questioned for want of legal authority except by some direct proceeding
This important principle according to Cooley finds concise expression in the legal maxim that the acts of officers de facto cannot be allowed to be questioned collaterally
Considering the nature and course of proceedings in the instant case it seems to us impossible to hold that the challenge to Shri Gupta s appointment was made in a collat eral proceeding
That Shri Gupta s appointment was not challenged in the very proceeding before him does not meet the point and in any case if the proper mode to challenge the validity of an appointment to a public office is by a petition for the writ of quo warranto the Labour Court over which Shri Gupta presided was hardly an appropriate forum for challenging the appoinment of its Presiding Officer
The 1st respondent the Haryana Co operative Transport Ltd against whom Shri Gupta gave the award filed a writ peti tion in the High Court of Punjab and Haryana to challenge the award on the ground that Shri Gupta was not qualified to hold the office of a Judge of the Labour Court and there fore the award given by him was without jurisdiction
The challenge to Shri Gupta s appointment having been made by a writ petition under articles 226 and 227 of the Constitution to which Shri Gupta was impleaded as a partyrespondent the challenge was made directly in a substantive proceeding and not collaterally
The writ petition was filed mainly with a view to challenge Shri Gupta s appointment on the ground that he was not qualified to fill the post to which he was appointed
Having been impleaded to the writ peti tion he had a clear and rightful opportunity to defend his appointment
The proceedings by way of a writ petition were taken not collaterally for attacking an appointment to a judicial office in a proceeding primarily intended for challenging a so called judicial decision but the proceed ing was taken principally and predominantly for challenging the appointment itself
None of the decisions nor indeed the passage in Cooley s Treatise is therefore any answer to the prayer that the award be declared to be ultra vires on the ground that the officer who gave it was not qualified to hold that post in the exercise of whose functions the award was given
The mere circumstance that the 1st respondent did not in so many words ask for the writ of quo warranto cannot justi fy the argument that the appointment was being challenged collaterally in a proceeding takes to challenge the award
Considering the averments in the writ petition it seems to us clear that the main and real attack on the award 3 ILR 16
4 1546 SCI76 312 was the ineligibility of Shri Gupta to occupy the post of a Judge of the Labour Court in the discharge of whose func tions the award was rendered by him
The relief of certio rari asked for by writ petition was certainly inappropriate but by clause c of paragraph 16 the High Court was invited to issue such other suitable writ order or direc tion as it deemed fit and proper in the circumstances of the case
There is no magic in the use of a formula
The facts necessary for challenging Shri Gupta s appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground_ that he was not qualified to hold the post of a Judge of the Labour Court
It must be mentioned that in the Canadian case of re Toronto vs City of Toronto supra the contention was that the Ontario Railway and Municipal Board was a Superior Court within the meaning of section 96 of the British North America Act and its members not having been appointed by the Governor General had no jurisdiction to exercise the powers conferred upon the Board by the Act by which it was created
This argument was repelled firstly on the ground that the Board was not a Court but an administrative body and secondly on the ground that there was nothing to show that the members of the Board were not appointed by the Governor General
In the Travancore Cochin case the Chief JustiCe whose appointment was challenged was qualified to hold that post since he had held the office of a Judge of the Madras High Court though he had retired from that office on attaining the age of 60
The question really turned on the construc tion of article 376 2 of the Constitution which confers power on the President is determine the period for which a Judge of a High Court in any Indian State corresponding to any State specified in part B of the First Schedule holding office immediately before the commencement of the Constitu tion may continue to hold that office
Besides the Chief Justice s appointment was challenged collaterally in appli cations for leave to appeal to the Supreme Court against the judgments pronounced by him
The Full Bench judgment of the Allahabad High rested on the presumption in the absence of fuller information that the appointment must be deemed to have been made in the exercise of some power vested in the Secretary of State for India even if such power was unknown to the Court
Deliver ing the judgment of the Court Edge CJ observed at page 157 Being in ignorance as to whether or not any power existed under which Mr Justice Burkitt may have been lawfully appointed to act as a Judge of this court we hold that the presumption that he was duly appointed which arises from the fact of his having acted as a Judge of the Court since November 1892 has not been re butted
This may seem to be a lame and impotent conclusion for a Court of Justice to arrive at concerning the validity of the appoint ment of one of its acting Judges but our lack of necessary informationion as to the appointment coupled with the circumstances of the case permits of our arriving at no other
 Learned counsel for the State of Haryana contends that there is one more impediment in the Court holding that Shri Gupta was not 313 qualified under section 73 of the Act to be appointed as a Judge of the Labour Court
Reliance is placed in support of this argument on section 9I of the Act which reads thus 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 ques tion 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
 It is true that s91 is worded so widely and generally that it could cover any and every challenge to the appoint ment to the particular posts therein mentioned
But it is impossible to construe the provision as in derogation of the remedies provided by articles 226 and 227 of the Consti tution
The rights conferred by those articles cannot be permitted to be taken away by a broad and general provision in the nature of s91 of the Act
The words in any manner which occur in s91 must therefore be given a limited meaning so as to
bar the jurisdiction of civil courts in the ordinary exercise of their powers to enter tain a challenge to appointments mentioned in the sub sec tion
The High Court of Assam1 Bombay2 and Rajasthan3 have taken like the High Court of Punjab and Haryana in the instant case a correct view of the scope and meaning of s91 of the Act by limiting its operation to ordinary powers of the civil Courts
The rights conferred by articles 226 and 227 can be abridged or taken away only by an appro priate amendment of the Constitution and their operation cannot be whittled down by a provision like the one con tained in s9 1  of the Act
Accordingly it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court Tribunal or National Tribunal
If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction
To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under articles 226 and 227
In the result we affirm the judgment of the High Court and dismiss this appeal
We are thankful
to Shri Wad for assisting the Court as amicus
SR Appeal dismissed
1 Bozbarua GC vs Sate of Assam 1954 Assam 161
2 lagannath Vinayak Kale vs Ahmedi 1958 II LLJ 50 Bom 3 Mewer Textile Mills Ltd vs Industrial


Summary:
The first respondent a Co operative Transport Society terminated the services of respondent 3 and 4
The State of Punjab referred the dispute arising out of the dismissal of respondents 3 to 4 under section 10 of the to the Labour Court that was presided over by Mr Das
On Mr Das s retirement Shri Hans Raj Gupta was ap pointed as the Presiding Officer of the Court
Mr Gupta gave an award directing the reinstatement of respondents 3 and 4 with 50 per cent back wages from the date of their dismissal until the date of reinstatement
The first respondent being aggrieved by the award filed a writ petition in the High Court under Articles 226 and 227 of the Constitution praying that the award given by second respondent be set aside on the ground inter alia that he was not qualified to become the Presiding Officer under section 73 of the Act since he did not hold any judicial office in India for not less than 7 years
The contention of respondent No 2 was that he held such a judicial office because he worked as Upper Division Clerk cum Head Clerk Assistant Settlemeat Officer and Registrar of the Pensions Appeals Tribunals
The contention that he held judicial office was not pressed before the High Court and in this Court by the State
The State Government however supported the award on the plea that Mr Gupta s appointment cannot be challenged in collateral proceedings filed in the High Court for challenging the award
Re Toronto  Co vs City of Toronto 46 Dominion Law Reports 547 Bhaskara Pillai and Anr
vs State 1950 5DLR Travailcore Cochin 382 and Queen Empress vs Ganga Ram ILR 16 All
136 distinguished
Dismissing the appeal HELD 1
Considering the nature and course of proceedings in the instant it is impossible to hold that the challenge to Mr Gupta s appointment was made in a collateral proceeding
The appointment of Mr Gupta could not have been challenged before him
The challenge to his appointment having been made by writ petition under Articles 226 and 227 of the Constitution to which Mr Gupta was impleaded as a party respondent the challenge was made directly in a substantive proceeding and not in a collateral proceeding
Since he was impleaded in the writ petition he had a clear and right ful opportunity to defend kid appointment
311 C E 2
The mere circumstance that the first respondent did not in so many words ask for a writ of quo warranto cannot justify the argument that the appointment was being chal lenged collaterally in a proceeding taken to challenge the award
On the averments in the writ petition it is clear that the main and real attack on the award was the ineligi bility of Shri Gupta to occupy the post of a Judge of a Labour Court in the discharge of whose functions the award was rendered by him
311 G H 312A 307 3
The relief of certiorari asked for by the writ peti tion was certainly inappropriate but the High Court was also invited to issue such other suitable writ order or direction as it deemed fit and proper in the circumstances of the case
There is no magic in the use of a formula
The facts necessary for challenging the appointment are stated clearly in the writ petition and the challenge to the ap pointment is expressly made on the ground that the officer was not qualified to hold the post
312A B 4
The finality of the orders of the Labour Court con templated by section 91 although widely worded must be given a limited meaning so as to bar the jurisdiction of civil courts in the ordinary exercise of their powers
It is impossible to construe the provisions in derogation of the remedies provided by Article 226 and 227 of the Constitu tion
313D E Bezparua GC vs State of Assam AJR 1954 Assam 161 Jagannath Vinayak Kale vs Ahmadi 1958 II LLJ 50 Bom and Mewar Textile Mills Ltd vs Industrial Tribunal AIR  approved