Case: High Court Of Gujarat  Vs. Gujarat Kishan Mazdoor Panchayat

A Notification dated 7.12.2000, in this regard was issued by the order of Governor by the Labour and Employment Department of the Government of Gujarat in the Gujarat Government Gazette whereby Shri N.A. Acharya had been appointed as the President of the Industrial Court which was under challenge before the High Court of Gujarat in Special Civil Application Nos. 12665/2000, 79/2001, 80/2001 and 93/2001 filed by Gujarat Kishan Mazdoor Panchayat, Gujarat Industrial Court Judges Association, Labour Laws Practitioners Association and Surat Textile Labour Union. As per the directions of the Chief Justice, the applications were placed before the Full Bench of the Gujarat High Court. The Full Bench, by its judgment dated 4.5.2001, allowed the applications and quashed the said Notification dated 7.12.2000. The Full Bench further directed the respondents to proceed to make the appointment afresh on the post of the President of the Industrial Court, Gujarat in the light of what has been held in the said order and in accordance with law. Aggrieved by the order passed by the Full Bench of the High Court, the High Court of Gujarat through its Registrar preferred Special Leave Petition (c) Nos. 11795-11798/2001 on the grounds raised in the special leave petitions. By order dated 14.12.2001, this Court granted leave and made the interim order absolute.2. All these appeals involve common question of law based on same set of facts, therefore, we propose to decide these appeals by a common judgment. A Special Civil Application was filed by the Gujarat Kishan Mazdoor Panchayat, a Registered Trade Union to direct the respondents therein not to make any appointments on the post of President of the Industrial Court save and except by appointing any Member of the Industrial Court as President and other allied reliefs. A prayer to issue a writ of quo warranto was also asked for to direct Shri N.A. Acharya - respondent No.3 in the application to state the basis of his right to be appointed as President of the Industrial Court and to set aside and quash the appointment order dated 7.12.2000 purporting to appoint Shri N.A. Acharya as President of the Industrial Court.3. The brief facts leading to the filing of the applications are briefly stated as under:The Bombay Industrial Relations Act, 1946 (hereinafter referred to as "the B.I.R. Act") governs he relationship between the employees and workmen in several industries operating in Gujarat and more particularly, the Industry of Textile, the Industry of Power in the late Bombay State area of Gujarat, the Surat Industry, the Banking Industry run by Banking Companies having no branches outside the State of Gujarat. Sections 9 and 10 of the B.I.R. Act thereof provide for setting up of Labour Courts and Industrial Court. Section 10 of the B.I.R. Act, which pertains to the setting up of a Court of Industrial Arbitration to be known as Industrial Court, is provided to consist of three or more Members, one of whom shall be its President. Section 10(4) of the B.I.R. Act provides that every Member of the Industrial Court shall be a person who is or has been a Judge of High Court or is eligible for being appointed a Judge of such Court provided, inter alia, that a person who has been a Judge not lower in rank than that of Assistant Judge, for not less than three years; or a person who has been the Presiding Officer of a Labour Court for not less than five years shall also be eligible for appointment as a Member of the Industrial Court. According to the respondents, there are twelve Members of the Industrial Court functioning in Gujarat State and so far as the Labour Courts are concerned, there are 38 Judges functioning in Gujarat, four of them are Judges who have completed more than ten years service as Labour Judges and several more Labour Judges are those who have completed more than five years service as Labour Judges and are, therefore, eligible for being appointed as Members of the Industrial Court. When the post of President of the Industrial Court was vacant since the retirement of Shri D.V. Joshi, Shri Y.P. Bhatt, the senior-most Member of the Industrial Court expressed his unwillingness to be appointed as President of the Industrial Court, the post was, therefore, required to be filled up by a regular appointment. According to the respondents, a person for being appointed as President should be a Member of the Industrial Court and no one except a Member can be appointed as a President of the Industrial Court. It was, therefore, submitted before the High Court that anyone from the Members of the Industrial Court can be considered to be eligible for being appointed as President. It was further submitted that in view of the scheme of Section 10(2) of the B.I.R. Act, no one who is not a Member of the Industrial Court can be directly appointed as President of the Industrial Court. It was further argued before the High Court that for Members of the Industrial Court, there is no other avenues of promotion except one by way of appointment as President of the Industrial Court a now, if the post of President is to be filled up by bringing someone from Judicial Service, it will cause a great frustration among Members of the Industrial Court as their hopes of promotion at an appropriate time will be dashed to the ground. Opposing the applications, it was submitted by the respondents, appellants herein, that no illegality was committed by recommending the name of Shri N.A. Acharya for appointment as the President of the Industrial Court and that under Rules 2 and 3 of the Draft Recruitment Rules, it has become necessary for the High Court, on its administrative side, to recommend the appointment of an appropriate person by nomination on the said post under Rule 2(b) and that Shri N.A. Acharya, whose name was recommended, is fulfilling the criteria prescribed by the Government as per the old Rules as well. It was submitted that considering the totality of the facts, the High Court of Gujarat had not only acted within its rights but the same had been done in due discharge of the Constitutional duty. The petitioners, respondents herein, filed their rejoinder to the reply affidavit on behalf of the High Court of Gujarat reiterating the contentions raised in the applications. In the rejoinder affidavit, it was submitted that neither the appointment order nor the reply affidavit filed on behalf of the High Court shows that the appointment was made by the Governor of the State and that there is nothing to show that the Full Court was consulted by the appointing authority before making the appointment. It was further stated that assuming that the appointment by nomination can be made on the post of a President of the Industrial Court either under the old Rules pertaining to the post of President or under the new Rules which are at the draft stage only, the candidate concerned should have atleast for ten years either held a judicial post in India or should have been an advocate for High Court or should have expert knowledge of Industrial matters. According to the petitioners, respondents herein, the appointee, under the impugned appointment, had not hold in a judicial post for ten years and in fact he was holding the post of Joint District Judge only and he had not even completed three years on the post of Additional District Judge to which post he was directly recruitment. It was, therefore, submitted that the appointment had been made without coming to the conclusion that the appointee was fulfilling the criteria for appointment as required by the Rules. An affidavit in reply was filed before as to how the matter was considered by the Standing Committee of the High Court and as to how the decision was taken to appoint Shri N.A. Acharya as the President of the Industrial Court.The Full Bench of the High Court, by its judgment, held that a reading of Section 10 of the B.I.R. Act would show that it provides for the constitution of the Industrial Court with three or more Members, one of whom as its President and it also provides the eligibility for appointment as Member of the Industrial Court. While the eligibility has been prescribed under Section 10(3) and (4) of the B.I.R. Act for being a Member of the Industrial Court, for the purpose of President of the Industrial Court all that has been said in sub-section (2) of Section 10 of the B.I.R. Act is that one of the Members shall be its President. Therefore, being a Member of the Industrial Court is a pre-requisite and condition precedent for being the President of the Industrial Court and no person can be appointed as the President of the Industrial Court unless he is a Member of the the Industrial Court. He Full Bench further held that the absence of any Rules with regard to the appointment on the post of President of the Industrial Court except the existing Draft Rules framed by the High Court and the Rules as had been framed under proviso to Article 309 of the Constitution vide Gujart Government Gazette dated 25.2.1965 being only for recruitment for the post of Member Industrial Court and the Rules for appointment of President, Industrial Court as contained in the Hand Book (1992) that too not in consultation with the High Court the only relevant provision which can be traced is Section 10 of the B.I.R. Act and according to Section 10(2) of the B.I.R. Act, one of the Members of the Industrial Court has to be the President. The Full Bench further held that there was no lawful justification for excluding the candidates, who were holding the post of Member, Industrial Court and whereas they have been kept out of consideration on the basis of the proposed Draft Rules, the consideration for making the appointment to the post in question stands vitiated. Elaborating further, the Full BenchIn the first instance, there is no question of appointment by nomination on the basis of the proposed Draft Rules by holding that existing Member were not eligible because they have not completed five years as Member. In a given case when the only mode of appointment is promotion and it is found that no one is eligible for appointment by promotion, it may be open to make appointment by direct recruitment, which would mean inviting application from all eligible candidates and then making the selection. No such procedure has been followed and the consideration was kept confined to the Members of the Judicial Services, who had conveyed their willingness for appointment as President for the Industrial Court. We find that the procedure, which has been adopted and which has led to the impugned appointment, is not in conformity either with the general right of equality under Article 14 of the Constitution of India and with the right of equality in matters relating to employment as contemplated by Article 16 of the Constitution of India and therefore this appointment cannot be sustained in the eye of law.It is also not in dispute that the respondent No.3 had never been appointed as Member of the Industrial Court and in terms of Section 10(2) of the Bombay Industrial Relations Act, without being a Member of the Industrial Court, there is no question of his appointment as the President of the Industrial Court either by promotion or by direct recruitment. Being a Member of the Industrial Court is a sine qua non for consideration for the post of President of the Industrial Court and no person who is not a Member of Industrial Court could be considered for appointment as such without committing violence to the recruitment of Section 10(2).In the instant case, we find that the mode of direct recruitment is not contemplated and even if any direct recruitment is held for the post of President of Industrial Court when no Member is eligible, such direct recruitment is required to be held after affording equal opportunity to all those, who are eligible. The proposed Draft Rules 2(a) seeks to render the Members of the Industrial Court to be ineligible by putting the condition of the completion of 5 years service on the post of Member. When the Act has not put any such fetter and the Act contemplates that one of the Members of the Industrial Court shall be President and it is not stated that he must complete certain years of service as Member, through executive instructions such a requirement could not be pressed so as to defeat the right of consideration of the Members of the Industrial Court for consideration of the post of President. Under Section 10(2) every Member of the Industrial Court is eligible to be considered for the post of President notwithstanding the number of years of service put in by him as a Member.In our considered opinion, Section 10 of the Bombay Industrial Relations Act, 1946 is the only relevant provision to be taken note of for the purpose of appointment of the President and the only mode of appointment is by way of promotion from amongst the Members of the Industrial Court and in this regard, if any Rules are to be framed in exercise of the powers under Chapter VI of Part VI of the Constitution of India, the same cannot be inconsistent with the requirements of the Bombay Industrial Relations Act, 1946....The High Court, for the reasons stated above, quashed the Notification which is impugned in the applications and further directed the respondents therein to proceed to make the appointment afresh on the post of the President of the Industrial Court Gujarat in the light of what has been held in the said order and in accordance with law.6. Aggrieved by the impugned judgment, the above four appeals, by way of special leave petitions, were preferred by the High Court of Gujarat. We heard Shri Mahendra Anand, learned senior counsel, for the appellants and Shri R. Venkataramani, learned senior counsel, for the contesting respondents.

Reasoning:
16. In our opinion, in the case of appointment of President of the Industrial Court by nomination, it is not necessary that he must be appointed as Member at the first instance. Section 10(2) of the B.I.R. Act deals with the composition of Industrial Court, which does not lay down the mode of appointment. The words of Section 10(2) of the B.I.R. Act are not that the President shall be appointed from one of the current Members of the Industrial Court. In our view, the High Court has erroneously read these words in Section 10(2) of the B.I.R. Act. It is also seen that the proposed Recruitment Rules were framed by the High Court at the request of the Government and pending approval of the Government. We are, therefore, of the opinion that the appointment of Shri N.A. Acharya as President of the Industrial Court is not in breach of Section 10(2) of the B.I.R. Act and also not violative of Articles 14 and 16 of the Constitution of India. To be eligible for appointment by nomination, the candidate must not be connected with any Industry as defined in the B.I.R. Act and must (1) not be less than 45 years of age, and (2) have for atleast ten years either held a judicial post in India or been an advocate for High Court or have expert knowledge of Industrial matters. Based on the recommendation of the High Court, on its administrative side, the Government of Gujarat issued the Notification on 7.12.2000 whereby Shri N.A. Acharya had been appointed as the President of the Industrial Court. Considering the totality of the facts, it is clear that by recommending the appointment in question, the High Court of Gujarat had not only acted within its rights but the same had been done in due discharge of the constitutional duty.17. In our view, Section 10(2) of the B.I.R. Act cannot be read to mean that the President of the Industrial Court must be appointed from amongst the existing Members of the Industrial Court when the provision in fact is not in such terms. The High Court has confused the concept of the President of the Industrial Court being from among the Members of the said Court with the erroneous concept that the said President must be from amongst the existing members of that Court. A reading of the provisions of Section 10 of the B.I.R. Act clearly spells out that, apart from the mode of selecting the President by promotion amongst the Members, the President can also directly be appointed from the sitting or retired High Court Judges or from the Judges of City Civil Court, Ahmedabad and District Judges, who fulfills the eligibility requirement for appointment as Member of the Industrial Court. The High Court, in our view, has failed to appreciate that the words of Section 10(2) of the B.I.R. Act are not "that the President shall be appointed from one of the current Members of the Industrial Court". The narrow interpretation of Section 10(2) of the B.I.R. Act and the reasoning of the High Court, in our view, completely rules out the appointment of President, Industrial Court through the mode of nomination. In other words, the High Court failed to appreciate that once a person is appointed as the President of the Industrial Court, he automatically becomes a Member. Section 10(2) of the B.I.R. Act only envisages that the President is the senior Member of the Industrial Court and that the appointment of President of the Industrial Court is inherent in his appointment as Member of the Industrial Court.18. This Court, in the case of State of Maharashtra vs. Labour Law Practitioners Association & Ors., (1998) 2 SCC 688 , held that the Labour Court Judges and the Judges of the Industrial Court belong to Judicial service and recruitment is to be made in accordance with Article 234 of the Constitution of India. The existing Recruitment Rules did not comply with the provision of Article 234 of the Constitution of India. The State Government, therefore, referred to the High Court for consultation and approval of the Rules. The administrative side of the High Court framed the Draft Rules and the appointment offered to Shri N.A. Acharya was in accordance with the Draft Rules. This apart, the eligibility criteria for appointment on the post of the President of the Industrial Court has been determined by the High Court and the same has been incorporated in the Draft Recruitment Rules at the request of the Government.19. For the foregoing reasons, we are of the opinion that no illegality is committed by recommending the name of Shri N.A. Acharya as the President of the Industrial Court, for appointment by nomination.