STATESMAN (PRIVATE) LTD. v.

H. R. DEB & ORS.

April 2, 1968

[M. H!DAYATULLAH, C.J., V. RAMASWAMI, C, A. VA!DIALINGAM, ..

K. S. HEGf>E AND A. N. GROVER, JJ.J

Industrial Disputes Act (14 of 1947), ss. 7(3)(d) and 2•"11ldicial Of!ic1", if inc/udea office of Magistrate-Writ of Quo Warranto-/n.ru•

ance.

Section 7(3)(d) of the Industrial Disputes Act provides that no person shall be qualified for appointment as the presiding officer. of a l.abour Court, unless he has held any judicial office for not less than seven years.

Since 1940 the first respondent held the Office of Sub-Deputy Collector and was vested with Magisterial powers. In 1959 he was appointed the presiding officer of a Labour Court and he gave an award aaainst the appellant. TM appellant questioned the appointment on the ground that the first respondent had not held 'judicial office' for 7 yeal'S prior to his appointment.

HELD : A Magistrate holds a judicial office.

That his duties are partly judicial and partly other does not in any way del!racl from the position that while acting as a Magistrate he is a judicial officer. An office means no more than a position to which certain duties are attached.

A public office is one which entitles a man to act in the affairs of others without their appointment or permission. The office of a Magistrate is a correct expl'css1on in English and in law.

The word 'office' has been applied to Magistrates. The Judicial Officers Protection Act. is illlended

to prouict not Civil Judges alone hut also Magistrate. (620 p:621 CJ,

The functions of a Labour Court are of great public importance and quasi civil in nature.

Men of. experience on the civil side of the law are more suitable than Magistrates.

Persons employed on multifarious duties and in addition performing some judicial functions may not truly answer the requirement of s. 7.

For it cannot be denied thac the express.ion "holding a judicial office" signifies more than discharge of judi cial functions while holding some other office.

The phrase postulalies that there is an office and that office is prilllMily judicial. In this case the distinction was unsubstantial because the Magistrate was holding a fixed position for nineteen years and performing functions primarily Of judicial character. [622 B-DJ.

Even if there be some doubt that is to be resolved in favour of upholding the appointment on the ground that the legislature itself by s. 9 contemplatea that such appointments should not be called into queation.

Although the provisions of s, 9 cannot shut out an inquiry (if there is a clear usurpation) for purposes of a writ of quo warranto at least in an unclear case the intent of the le)lislature is entitled to great weight The High C.mrt in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement of the law.

(621 D-FJ.

CIVIL APPELLATE JURISDICTION: Civil APPCal No. 647 of 1967.

STATESMAN LTD. v. H. R. DEB (flidayatullah, C.J.) 615

Appeal from the judgment and order dated January 5, 1967 of the Calcutta High Court in Appeal from Original Order

No. 134 of 1966.

Sachin Chaudhuri, !. K. Glzoslz and D. N. Gupta, for the appellant.

B S. C. Mazumilar and A. K. Mitter, for respondent No. 2.

B. Sen, G. S. Chatterjee for P. K. Bose, for respondent No. 3.

The Judgment of the Court was delivered by

Hidayatullah, C.J. This appeal on certificate arises from a C petition under Art, 226 of the Constitution of India filed in the High Court at Calcutta by the appellant, the Statesman Private Ltd. This company prints 'and publishes daily and weekly newspapers and undertakes general printing work at Calcutta.

By that writ petition the Company asked for a writ of certiorari against the Second Labour Court, West Bengal with a view to quashing an award, 21 September 1960, reinstating one Sheikh D Kaloo, one of its employees. The Company had dismissed the said Kaloo after holding an inquiry but the Second Labour Court ordered his reinstatement with half wages for the period of his 'forced unemploymenf.

The writ petition was heard by B. N.

Banerjee J. and by his order, 15 February, 1962, the petition was granted and the order of the Tribunal was quashed.

The E workmen who had sponsored the case of Kaloo appealed in the High Court. During the course of the appeal an application was filed by the Company stating that the Tribunal presided over by Mr. H. R. Deb was not qualified in law to agj_udicate upon the dispute inasmuch as the appointment of Mr. Deb was in violation of the provisions of s. 7(3)(d) of the IndustriaJ Disputes Act.

1947. On June 16, 1964 by another affidavit the particulars of F the services of Mr. Deb were stated to show that Mr; Deb had not held a 'judicial office' in India for not less than 7 years and as this was a condition precedent his appointment was illegal and the award made by him was a nullity. The Company stated that this was so held in another matter (Matter No. 120/1961 decided on July 28, 1965 between Shree Hanuman Foundries v. H. R. Deb G and others. The appeal was heard and allowed and the order of B. N. Banerjee J. was set aside but liberty was given to the Company, oa terms as to costs, to amend the original petition and the learned Judge was directed to hear and determine the amended petition. The amendment was effected on August 5, 1964. On September 3, 1964 the Divisional Bench in Hanuman Foundries H case delivered judgment. Two separate judgments were delivered.

Bachawat J, held that the provisions of 11. 7(3) (d) of the Industrial Disputes Act were directory while Basu, J. held them to be mandatory. Bachawat J. also held that even if the appointment

of Mr. Deb was not regular, the doctrine of de facto determination by a Court apparently possessed of jurisdiction applied and the order could not be questioned. Basu J. held to the contrary. The matter was then referred to Sinha J. (as he then was) who held that (a) Mr. Deb had not held judicial office for 7 years prior to his appointment; (b) thats. 7 (3)(d) of the Industrial Disputes Act was mandatory; ( c) a writ of quo warranto must therefore issue against him; ( d) that the de facto doctrine applied; and ( c) proceedings for a writ of certiorari was collateral and, therefore, not available to quash the award of Mr. Deb.

The case of Hanuman Foundries as decided by the Full Bench was followed in the present writ petition by B. C. Mitra J. on June 6, 1966 and the writ petition was dismissed. The Company appealed against the judgment of B. C. Mitra J. Sinha C.J. and A. K. Mookerjee J. dismissed the appeal, January 5, 1967 but granted a certificate and this appeal is the result.

Although this appeal is quite separat"' from the Hanuman Foundries case, the decision in that case was the one canvassed before us. After hearing the arguments in the case we are satisfied that the appeal must fail on the ground that Mr. Deb was competent to exercise jurisdictiiln and his appointment cannot be called in question. In this view of the matter the vecy interesting and learned discussion of the de facto doctrine need not detain us and we express no opinion about it.

The question falls to be considered on the words and scheme of s. 7 and some other sections. To approach the problem we may first see some other provisions.

The Act is intended to make provision for the investigation and settlement of industrial disputes. Chapter II names the authorities under th.e Act. They are Works Committee (s. 3), Conciliation Officrs (s. 4), Boards of Conciliation ( s. 5), Courts of Inquiry ( s. 6), LabOur Courts ( s. 7), Tribunals ( s. 7 A), National Tribunals ( s. 7B). Each of these sections prescribes the qualifications of the persons fit to be appointed. They are either wholly or partially different as we

shall see presently. Section 7C, however lays dowti that no person shall be appointed to, or continue in, the office of the presiding officer of a Labour Court, Tribunal or National Tribunal if (a) he is not an iildejiendent person; or (b) he has attained the age of 65 years.

Section 8 deals with vacancies and then comes s. 9 laying down the finality of orders constituting Boards etc. We shall read 1t presently.

We are concerned with s. 7 which provides for the constitution. of Labour Courts and prescribes the qualifications for appointment. The section may be read here :

"7. Labour Courts."

(1) The appropriate Government may, by notifica tion in the Official Gazette, constitute one or more Labour Courts for the adjudication of imfustrial disputes relating to any matter specified in the Second Schedule and for performing such other functions a&-

may be assigned to them under this Act

( 2) A Labour Court shall consist of one person only to be appointed by the appropriate Government.

( 3) A .person shall not be qualified for appointment as the presiding officer of a 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, or of any Tribunal, for a period of not less than two years; or

(d) he has held any judicial oflice in India for not less than seven years; or ( e) he has been the presiding officer of a Labour Comt constituted under any Provincial Act or State Act for not less than five years."

This matter is covered only by cl. ( d) of the third sub-section •.

It may, however, be noticed that no special qualifications are prescribed for Works Committees. Conciliation Officers, Boards F of Conciliation and Courts of Inquiry such as are to be found in s. 7 quoted here.

Special qualifications of the members are 10 be found only in respect of Labour Courts, Tribunals and National Tribunals. These are one-man bodies and tlle qualification of the member is stated. In the case of Tribunals the qualification is : G

"7 A. Tribunals.

(I)

(2) ..... . .... . ....

(3) A person shall not be qualified for appointment as the presiding officer of a Tribunal unless--

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

(aa) he has, for a period of not less than three years,

been a District Judge or an Additional District Judge; or

( b) 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, or of any Tribunal, for a period of not less than two years."

:.and in the case of National Tribunals the qualifications are :

"7B. National Tribunals.

( 1) .•...

(2) .....

( 3) A person shall not be qualified for appoint- :ment as the presiding officer of a National Tribunal :unless-

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

(b) 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, for a period of not less than two years." The selection thus is most restricted in the case of National Tribunals, and in varying degree less and less restricted as we pass to Tribunals and Labour Courts. Thus National Tribunals can be presided over only by a person who is or has been a Judge of ; a High Coun or has held the office of the chairman or any other member of the Labour Appellate Tribunal for a period of not Jess than two yeaci.

There qualifications do not admit of any doubt or exception since the incumbent's qualifications are quite clearly set down. In the case of Tribunals the range of selection is made wider by including a District Judge or an Additional District Judge, who has held this office for a period of not less than 3 years.

The selection is made still wider in the case of Labour Courts by making competent in addition presiding officers of LabQur Courts constituted under any Provinciru Act of State Act for not Jess than 5 years, and persons holding judicial office for not less than seven years. There is, however, no definition of judicial office and here the difficulty arises.

Mr. Deb, tlie incumbent of the office in the present case, had ; at his back the following career :.

(a) Sri Hem Ranjan Deb was first appointed on 23rcl January 1940 as a Sub Deputy Collector on probation and on 24tb January 1940 was appointed as Sub-Deputy Collector and Circle Officer.

,..

- -

(b) On 1st July 1940 he was vested wi~ power of a third class Magistrate. He was confirmed m the post of a Sub-Deputy Collector on 23rd January, 1941.

(c) On 1st July 1950 the said Hem Ranjan Deb was vested with Powers of a Second class Magistrato

and on 1st April 1951 he was vested with powers of a FJl'St Class Magistrate •••

On July 27, 1959 Mr. Deb was appointed the p,:esiiling officer of the Second Labour Court by Notification No. 3422-IR/IR/ 3A-9/59. The notification read:

"In exercise of power conferred by Sul!-sections

(2) and (3) of S.T. of the Industrial Disputes Act 1947 read with S. 7C of the sai<l Act, the Governor is pleased to appoint Hem Ranjan Deb who is an independent person and has not attained the age Of 65 years and has held a judicial office in India for not less than 7

years to be . the Presiding Officer of the Second Labour Court constituted under the Government of West BengaI's notification No. 1727-IR/IR/3A-1/58 dated 26th April 1958 vide Shri Probodh Chandra Maitra

(Calcutta Gai.ettee, 6th August 1959)".

The notification took into account the provisions of s. 7C already analysed by us and also declared that he was qualified under E s. 7 ( 3 )( d). Government apparently considered the office held by him from January 23, 1940 to July 27, 1959 a.~ a judicial office necessary for appointment. Since the period for which he held his earlier office is well in excess of 7 years the only question is whdher it was a 'judicial office'. If it was then undoubtedly Mr. Deb was qul&lified. If there be a dispute then the matter falls F to be considemi. In doing so we must take into further account the provisions of s. 9 of the Act as substituted by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1936 (36 of 1956). That amending Act also recasts. 7 in its present fo~ 11!1d ad<ied ss. 7 A, 7B and 7C. Section 9 may now be read

but 1t JS not necessary to read beyond the first sub-section :

"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 t!'e presi<!ing officer of a Labour Court, Tribunal or National Tnbunal shall be called in question 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 m the conshtuuon of, such Board or Court." L7 Sup.Cl/68-JS

It may be noticed that the first part refers to the appointment of 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. The second part deals with Board or Court and in view of the definition of 'Board' and 'Court' in s. 2 ( c) and (f) refers to a Board of conciliation or Court of Inquiry constituted under the Act. With these we are not concerned and the second part of s. 9, therefore, has no bearing although in the High Court that part alone was considered and the first part ignored.

Now the points for us to decide are first whether Mr. Deb held a 'judicial office' and next even if our opinion be that he did not can we declare his appointment to be invalid when s. 9 prohibits the calling in question of an appointment by Government.? Before we deal with these points in the light of the arguments addressed to us, we may say a few words about how these points were viewed by the High Court.

Banerjee J. who first heard the Hanuman Foundrit!s case made a distinction between 'judicial office' and 'judicial function' and came to the conclusion that although magistrates perform judicial functions, they could not be said to hold 'judicial office'.

Bachawat J., distinguished between 'judicial office' and 'judicial o; ervice'. He referred to the provisions of the Constitution bearing upon the appointment of Judges of the High Court and the District and subordinate courts, where these expressions occur and demon strated the difference.

In his view magistrates could be said to occupy judicial office, but they did not belong to judieia! service.

The approach of Sinha and Basu JJ., was the same as that of Banerjee J., although the matter was stated with great elaboration and copious references to the Criminal Procedure Code, and Eng lish and American cases, and text books.

It is not necessary to go over this field. All learned Judges seem to agree that a magistrate exercises judicial functions. '11tls does not admit of any doubt and no reasons are required. That his duties are partly judicial and partly other does not in any way detract from the position that while acting as a inagistrilte

he is a judicial officer. The dispute, therefore, really reduces it- G self to this : Does the magistrate hold an "office".

An office means no more than a position to which certain duties are attached.

According to Earl Jowitt's Dictionary a public offiee is one which entitles a man to act in the affairs of others without their appoint men! or permission. The 'office of a magistrate' is a correct expression in English and in law. Indeed the well-known maxim H of Coke on .Littleton (234a) officio magistratus non. debent esse

venalia (the offices of a magistrate ought not be saleable) clearly brings out that the word office can be applied to magistrates. Thus '

< H

there may be an office of a judge ( ofjicii judicis) which in ecclesiastical law at least was said to be promoted when criminal proceedings were taken. But there may be also the office of a magistrate.

Cicero in his De Legibus and De officiis makes no difietcnce between a magistratum and a judex. His famous .saying MagiJtratum /egem esse loquentem, legem autem mutum magis-' tratum (The Magistrate is a speaking law., but the law is a silent magistrate) was intended to apply to all judges of all kinds. The word 'office' has been applied to magistrates by Tacitus, Ovid

and others. Bachawat J. has given m'any references to bear out the meaning we have given and has very pertinently pointed out that the Judicial Officers Protection Act, is intended to protect not Civil Judges alone but also Magistrates. The distinction between judicial function and judicial office in this context is artificial and unsubstantial.

We agree with Bachawat J., that a magistrate holds a judicial office.

Once this is so held the appeal must fail.

Bu~ we cannot overlook the fact that even jf there be some doubt that is to be resolved in favour of upholding the appointment on the ground that the Legislature itself contemp!ates that such appointments should not be called into question.

Although the provisions of s. 9 cannot shut out an inquiry (if there is a clear usurpation) for purposes of a writ of quo warranto but at least in an unclear case the intent of the legislature is entitled to great weight. The Legislature has created the conditions of appointment and with its last voice has shut out inquiry.

The provisions of s. 7 ( 3 )( d) therefore, are not so absolute as to be wholly mandatory in the same way as the provisions of other clauses .are since they admit of no doubt, and therefore do not require construction.

The High Court in a quo warranto proceeding should be slow to pronounce upon the matter unless there is a clear infringement ol the law .. If a station master were appointed we can r.eadily question the appointment but when a per.son exercising judicial functions is appointed one cannot be too astute to say that the person does not hold a judicial office when it must at least be conceded that he holds an office of some kind. Nor does the argument that magistrates will claim to be appointed Judges of the High Court need detain us. The scheme of Chapter V of Part VI of the Constitution has its on .ect OD; te meaning of the expressions 'judicial office' '.1fld 1ud1c1al semce . In any case the use of the same expression m any other enatmet J;!Ot in pari materia can have no bearing upon the Industnal Disputes Act and vice versa. In the Constitution these words must bear the meaning which the context dictates and in that connection the history of appointment of Judges cannot be overlooked.

J..e:; t our maning be extended by Government to cases undeservmg of savmg .under s. 9, we wish to make it clear that the

622 SUPUMI! COtmT JUIPO&TS

(1968] J S.C.R.

intention of the Legislature really is that men who can be described as independent and with sufficient judicial experience i:nust

be selected. The :iru; ntion of High COllfl Judges and District Judges earlier in the same section indicates that Ordinarily judicial officers from the civil judiciary must be selected at last so long as the separation of judiciary from the Executive in the public services is not finally achieved. The appointment of a person from the ranks: of civil judiciary carries with it an assurance "'.hich is unique. The functions of a Labour Court are of great pµblic importal)ce and quasi civil in nature. MeJ! ot experience on the civil side of the law are more suitable than Magistniles. Persons employed on .multifarious duties and in addition performing some judicial functions, may not truly answer the requirement of s. 7 and it may be open in a quo warranto proceeding to question their appointment on the ground that they do not hold essentially a judicial office because they primarily perform other functions.

For it cannot be denied that the expression "liol!iing a judicial office" signifies more than discharge Of judicial functions while holding some other office. The phrase postulates that there is an office and that that offic!l is primarily judicial. Office means a fixed position for performance of duties. In this case the distinction was unsubstantial because the Magistrate was holding a fixed position for nineteen years and performing functions primarily of a judicial character. The case was not fit for interference by a writ in view of the provisions of s. 9 of the Act.

In the result we are o( opinion that the judgment under appeal is right although the reasons justifying the conclusion are different from those accepted by the Divisional Bench from the earlier case of the same Court. Tue appeal fails and will be dismissed with costs.

Y.P.

Appeal dismissed.