THE STATE OF MAHARASHTRA

LABOUR LAW PRACTITIONERS' ASSOCIATION AND ORS.

FEBRUARY 11, 1998

[MRS. SUJATA V. MANOHAR AND D.P. WADHWA, JJ.]

Constitution of India, Articles 236(a) and (b), 233," 234, 235, 227 and 217 (2) ( a)--Subordinate Judiciary--"District Judge" and "Judicial Service"

as defined in Article 236(a) and 236(b)-Scope of-Held, Labour Court performs judicial functions and thus, is a court-Judicial service postulates C a hierarchy of courts with the District Judge as the head and other judicial officers under him discharging only judicial functions-Labour Courts are also subject to the High Court's power of superintendence under Article 227-Therefore, in accordance with the principai of separation of power and independence of judiciary, recruitment of Labour Court judges is required to D be made in accordance with Article 234 of the Constitution-Service Law- Appointment of judges of Labour and Industrial Courts-General Clauses Act, 1897, Section 3(17)-Labour Law-Industrial Disputes Act, 1947, Section 7 (as amended by the State of Maharashtra in 1974)-Bombay Industrial Relations Act, 1946, Section 9 (as amended)-Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971, Section E 6.

Words and Phrases-Words "District Judge" and "Judicial Service"- Meaning of-In the context of Constitution of India, Article 236(a) and (b).

Respondent No. 1, an association of members practising in the Industrial and Labour Courts in the State, filed a writ petition before the High Court challenging the Notification dated 8.3.1979 issued by the State Gilvemment, appointing respondents 2 and 3 who were Assistant Commissioners of Labour,

as Judges of the Labour Court. It was also prayed that the provisions of amended Section 9 of the Bombay Industrial Relations Act and amended G Section 7 of the Industrial Disputes Act in so far as these provisions authorised the appointment of Assistant Commissioners of Labour as Judges of the Labour Court, were void and illegal and contrary to Article 234 of the Constitution. A single Judge of the High Court set aside the said Notification and directed the State Government to comply with the provisions of Article H 793

A 234 of the Constitution in appointing Judges of the Labour Court. A Division Bench of the High Court dismissed the appeal filed by the State. Hence this

ll(lpeal.

Dismissing the a11peal, this Court

B HELD : 1. The Labour Court performs judicial functions and is a Court. Labour Court adjudicates upon disputes that, had it not been for the Industrial Disputes Act, the Bombay Industrial relations Act and the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, would have been within the .iurisdiction of the ordinary civil courts to decide although the ordinary Civil Courts may not be able to grant C all the reliefs that are contemplated by these Acts. The Labour Courts are, therefore, courts and decide disputes that are civil in nature. (799-F-G)

1he Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd., (1950) SCR 459, relied on.

Cooper v. Wilson, (1937] 2 KB 309, referred to.

2. "District Judge" covers a .iudge of any principal Civil Court of Original Jurisdiction. With the increase in the number of specialised courts and tribunals which are being set up to deal with specific kind of civil E litigation which would otherwise have been dealt with by the ordinary civil there are number of specialised courts exercising different categories of civil original jurisdiction. It can be specialised civil original jurisdiction pertaining ot Labour and Industrial Dis11utes specified in the relevant Acts as in the case of Labour and Industrial Courts, or it could be pertaining to recovery of bank debts and so on. The structure of civil courts exercising F original jurisdiction is not monolithic. The judge of the Principal Civil Court heading the concerned set of courts under him and exercising that jurisdiction can also fall in the category of a "District Judge" by whatever name called. The term "District Judge" should not be confined only to the Judge of the Principal Civil Courts in the hierarchy of general civil courts ..

G The term would now have to include also the hierarchy of specialised civil courts, such as a hierarchy of Labour Courts and Industrial Courts. The fact

 that the Chief residency Magistrate and the Sessions judge were also included in the definition of "District Judge" indicates that a wide interpretation is to be given to the expression "District Judge". The extensive defmition of a District Judge under Article 236(a) is indicative of the same.

(801-D-G)

STATE v. LABOUR LAW PRACTI'ITONERS' ASSOCIATION 795

3.1. Under Articles 236(b), the expression "Judicial Service" is defined A

~'""

to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial post inferior to the post of District Judge as the head and other judicial officers under him discharging only judicial functions. (805-G-H)

3.2. In view of the provisions of Article 236(a) of the Constitution.of B

........

India, Section 3(17) of the General Clauses Act, 1897 and Section 3(15) of the Bombay General Clauses Act, 1904, the judicial service postulates a hierarchy of courts with the District Judge as the head and other .iudicial officers under him discharging only judicial functions. [801-H; 802-A)

Harinagar Sugar Mills Ltd. Shyam Sunder Jhunjhunwala & Ors., Am c

(1961), SC 1669, relied on.

Shripatro Dajisahab Ghatge v. The State of Maharashtra & Anr., Am

(1977) Bom. 384 and Shaika Mohammedbhikhan Hussainbhai v. The Mangar, Chandrabhanu Cinema & Ors., (1986) Lab. LC. 1749 (Guj), approved.

Chandra Mohan v. State of Uttar Pradesh & Ors., Am (1966) SC 1987 and Statesman (Private) Ltd. v. HR. Deb & Ors., Am (1968) SC 1495, distinguised.

Mis Poysha Industrial Co. Ltd. v. State of Uttar Pradesh & Ors., (1985) E Lab. LC. 1683 (Allahabad), overruled.

3.3. The holder of judicial office under Article 217(2).(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 F uphold the dignity, integrity and independence of the judiciary. Going by these tests laid down as to what constitute judicial service under Article 236 of the Constitution, the Labour Court judges and the Judges of the Industrial Courts can be held to belong to judicial service. The hierarchy contemplated in the case of Labour Courts .iudges is the hierarchy of Labour Court Judges and Industrial Courts judges with the Industrial Courts Judges holding the G superior position of District Judges. The Labour Courts have also held as . _._.)- subject to the High Court's power of superintendence under Article 227 .

(805-A-C)

Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428, relied on.

y c:

~ A Rajasthan State Road Transport Corporation v. Krishan Kant & Ors.,

(1995) 5 sec 75, distinguished. ........ .._,,.

3.4. The constitutional scheme under Chapter V of Part VI dealing with the ffigh Courts and Chapter VI of Part VI dealing with the subordinate courts shows a clear anxiety on the part of the framers of the Constitution B to preserve and promote independence of the judiciary from the executive. Thus Article 233 which deals with appointment of District Judges requires ..j..._ that such appointments shall be made by the Governor of the State in consultation with the High Court. Article 233(2) has been interpreted as prescribing that " a person in the service of the Union or the State" can refer only to a person in the judicial service of the Union or the State. Article

~ ·- c ' 234 which deals with recruitment of person other than District Judges to the judicial service requires that their appointments can be made by only in accordance with the Rules farmed by the Governor of the State after consultation with the State Public Service Commission and with the High Court. Article 235 provides that the control over district courts and courts

D subordinate thereto shall be vested in the High Courts; and Article 236 defines the expression "District Judge" extensively as covering judges of a city civil courts etc., and the expression "Judicial service" as meaning a service consisting exclusively of persons intended to fill the post of District Judge. Therefore, bearing in mind be principle of separation of power and independence of the Judicial service contemplates a service exclusively of E judicial posts in which there will be a hierarchy headed by a District Judge.

The High Court has rightly come to the conclusion that the persons presiding over Industrial and Labour Courts would constitute a judicial service so defined. Therefore, the recruitment of Labour Courts judges is required to be made in accordance with Article 234 of the Constitution.

(805-E-H; 806-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1505of1987. 1 c: From the Judgnient and Order dated 9.12.86 of the Bombay High Court in A.No.450 of 1979.

G M.S. Nargolkar and D.M. Nargolkar for the Appellant.

Ms. Indiara Jaising and Mukul Mudgal for the Respondents.

The Judgment of the Court was delivered by

H MRS. sujATA V. MANOHAR, J. The first respondent, Labour Law

~ -y··

STATE v. LABOUR LAW PRACTITIONERS' ASSOC. [SUJATAV. MANOHAR, J.] 797

Practitioners' Association is an association of member practising in the A

.,.--""'

Industrial and Labour Courts in the State of Maharashtra. The Association filed a writ petition before the High Court challenging the appointment of respondents 2 and 3 who were Assistant Commissioners of Labour, as Judges of the Labour Court at Pune and Sholapur under a Notification issued by the Government of Maharashtra dated 8.3.1979. They also prayed that the B provisions of the amended Section 9 of the Bombay Industrial Relations Act

~ and the amended Section 7 of the Industrial Disputes Act in so far as these provisions authorised the appointment of Assistant Commissioners of Labour as\lfudge of the Labour Court, 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 c 234 of the Constitution in appointing judge of the Labour Court. A learned Single Judge of the High Court 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 the Labour Court. Being aggrieved b y this judgment and order, D the appellant-State of Maharashtra preferred an appeal before a Division Bench of the High Court 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' E under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. Prior to 1974, the qualifications of a person to be appointed as a judge of the Labour Court under the Industrial Disputes Act as laid down in Section 7 were as follows: ·

(a) that he was or had been a judge of that High Court; or F ~

(b) that he had 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 the Labour Appellate Tribunal or of any Tribunal for , a period G 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 beeii ihe Presiding Officer of the Labour Court

conStituted urider any provincial Act for not less than five H

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 the Labom Court were added. These are :

"(d-1) he has practised as an advocate or attorney for not less than seven years in the High Court or any court subordinate thereto or any Industrial Court or Tribunal or Labour Court 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 Industrial Court or Tribunal for not less than five years; or

(d-3) he holds a degre 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 the State Government 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 the Labour Court unless he possessed the qualifications, other than the E qualification of age, laid down under Article 234 of the Constitution for being

eligible to enter the judicial seIVice in the State of Maharashtra. By Maharashtra Act No. 47of1977 dated 24th of October, 1977, Section 9 of the Bombay Industrial Relations Act was amended by substituting a new sub-section (2) for the original sub-section (2) of Section 9. The amended sub-section (2) of . t . .

Section 9 provides as follows:

"9(2): A person shall not be qualified for appointment as the presiding officer of a Labour Court unless :

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

(b) he has practised as an Advocate or Attorney for not less than seven years in the High Court or any Court subordinate thereto, or in any Industrial Court, Tribunal or Labour 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

.J..-.

STATE v. LABOUR LAW PRACTITIONERS' ASSOC. [SUJATA V. MANOHAR, J.] 799

in rank than that of Deputy Registrar of any such Industrial A Court or Tribunal, of of Assistant Commissioner of Labour under the State Government, 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, the State Government is entitled to constitute one or more Labour Courts 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 C qualifications other than the qualification of age, prescribed under Article 234 of the Constitution for being eligible to enter the judicial service in the State of Maharashtra and is not more than 60 years of age. This provision remains unamended. However, in view of the amendments carried out in the Industrial Disputes Act and the Bombay Industrial Relations Act, the State Government D felt that it was open to the State Government to appoint Assistant Commissioners of Labour working under the State Government for a period of not less than five years and holding a law degree, to the office of the presiding officers of Labour Courts. The impugned Notification of 8th of March, 1979, therefore, was issued appointing two such persons as presiding officers of Labour Courts at Sholapur and Pune which has been challenged E in these proceedings. According to the first respondent-Association, appointments as presiding officers of Labour Courts are appointments to the judicial service of the State and are, therefore, governed by Article 234 of the Constitutions.

There is not much difficulty in holding that the Labour Court performs F judicial functions and is a Court. The Labour Court 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 and Prevention of Unfair Labour Practices Act, would have been within the jurisdiction of the ordinary civil courts to decide, although the ordinary civil G courts may not be able to grant all the reliefs that are contemplated by these Acts. The Labour Courts are, therefore, courts and decide disputes that are civil in nature.

In the case of The Bharat Bank Ltd, Delhi v. Employees of the Bharat Bank Ltd, Delhi [1950] SCR 459, this Court considered whether an Industrial H

Tribunal was a court. It said that one cannot go by mere nomenclature. One has to examine the functions of a Tribunal and how it proceeps to discharge those functions. It held that and Industrial Tribunal had all the trappings of a court and performed functions which cannot but be regarded as judicial.

The Court referred to the Rules by which proceedings before the Tribunal were regulated. The Court dwelt on the fact that 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 Cooper v. Wilson, [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 four requisites :- (I) 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 by the parties; and ( 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, a Labour Court would undoubtedly be a court in the true sense of the term. The question, however, is whether such a court and the presiding officer of such a court can be said to hold a post in the judicial service of the State as defined in Article 236 of the Constitution.

Part VI, Chapter VI, of the Constitution of India deals with courts subordinate to the High Court. Article 233 which is the first Article of this Chapter, deals with appointment of District Judges. Article 234 provides as follows:

"234: Recruitment of persons other than district judges to the judicial service -

Appointments of persons other than district judges to the judicial service of a State Shall be made by the Governor of the state in accordance with rules made by him in that behalf after consultation G with the State public Service Commission and with the high Court exercising jurisdiction in relation to such State."

Article 235 provides that the control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any ·-1 post inferior to the post of district judges shall be vested in the High Court.

>----..

' • STATE v. LABOUR LAW PRACTITIONERS' ASSOC. [SUJATA V. MANOHAR; J.] 801

Article 236 (a) defines the expression "district judge'; as includin~ judge A . of a city civil court, additional district judge, joint district judge, assistant -'../~ ..... ,~ district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magiStrate, sessions judge, additional sessions judge d assistant sessions judge. This is an extensive definition and does not cover every category of a district judge. While considering the defrnition B of a "District Judge", one can also bear in mind a similar definition of "District ,..._.

Judge" in Section 3(17) of the General Clauses Act, 1897 and Section 3(15) 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 a High Court in the exercise c 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 by the ordinary civil D 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 Labour and Industrial Courts, or it could be pe.rtaining to recovery of bank debts and so on. The structure of civil courts exercising original jurisdiction is no longer monolithic. The judge of the E Principal Civil Court heading the concerned set of courts under him and exercising that jurisdiction can also fall in the category of a "District Judge" by whatever name called. Learned single judge and learned Judges of the Division Bench have, therefore, held that and Industrial Court is a civil court exercising civil original jurisdiction; and the person presiding over it could F well be termed as a District Judge. The term "District Judge" should not be --\ a confrned only to the judge of the Principal Civil Court 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 Labour Courts and Industrial Courts. The fact that the Chief Presidency Magistrate and the Sessions Judge were also included in the definition of "District" Judge indicates that a wide G interpretation is to be given to the expression "District Judge". The extensive /..- definition of a District Judge under Article 236 is indicative of the same. '-f' /

Under Article 236 (b ), the expression "judicial service" is defrned 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 H

A judge." Judicial service thus postulates a hierarchy of courts with the District Judge as the head and other judicial officers under him discharging only judicial functions.

In .the case of Chandra Mohan v. State of Uttar Pradesh & Ors., AIR (l 966) SC 1987 this Court was required to consider the question of eligibility B 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 C was challenged, this Court was required to consider and inteipret the provisions of Articles 233 to 236 of the Constitution. The procedure for selection under the said Rnles was also challenged as violative of Article 233. TI1e Court 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 be appointed as a District Judge. Dealing with D the definition of "judicial service" in Article 236, this Court said that the judicial service consists only of 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 inteipretingjudicial service in contradistinction .to executive service where some executive officers may also be E performing judicial or quasijudicial functions, this Court was at pains to emphasis th~ Constitutional scheme for independence of the judiciary. It said that the acceptance of this (i.e. Government'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 Court, therefore, defined judicial service in exclusive terms as consisting only of F judicial officers discharging entirely judicial duties. It said that having provided for appointments to thatservice and having entrusted the control of the said service to the care of the High Court, the makers of the Constfrution would not have conferred a blanket power on the Governor to appoint any person from any sei:vice as a District Judge.

G Reliance has been placed upon this judgment as showing that judicial service is inteipreted 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 H independence of the judiciary from the executive and making sure that persons

-1

ST ATE v. LABOUR LAW PRACTITIONERS' ASSOC. [SUJATA V. MANO HAR, J.] 803

from non-judicial services, such as, the police, excise or revenue were not A 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 be considered as a District Judge kneading in mind the extensive definition of that term in Article 236.

The High Court has, therefore, correctly interpreted the observations of this Court in Chandra Mohan's 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 C was not destroyed by an indirect method.

For the same reason of maintaining independence of the judiciary, in the case of Statesman (Private) Ltd. v. HR. Deb & Ors., AIR (1968) SC 1495, this Court observed that the intention of the Legislature in framing Section 7 (prior to amendment) of the Industrial Disputes Act was that men who could be D described as independent and with sufficiency judicial ell.-perience must be selected as Labour Court 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 Labour Court were in terms of Article 234 until the E 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 judgments which have dealt with the question whether a Tribunal set up under different Acts which F were before the Court in each case was a judicial body or a court and whether it was a court subordinate to the High Court. In Harinagar Sugar Mills Ltd.

v. Shyam Sunder Jhunjhunwala & Ors., AIR (1951) SC 1669, the Central

Government exercising appellate powers under Section l l l of the Companies Act was held to be acting as a judicial body and not as an administrative G body. In the case of Shripatrao Dajisahab Ghatge & Anr v. The State of Maharashtra & Anr., 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 to them by the State. It was held that High Court could exercise its jurisdiction under Article 227 over such tribunals. A Full Bench of the H

A Gujarat High Court in the case of Shaikh Mohammedbhikhan Hussainbhai & etc. v. The Manager, Chandrabhanu Cinema & Ors, etc., (1986) Lab I.C. 1749 h.-,... held that Labour Courts and Industrial Courts were courts for the pmposes \ .....

of contempt of Courts Act and were also courts subordinate to the High Court.

B The Allahabad High Court in the case of Ms Poysha Industrial Company Ltd. Ghaziabadv. State of Uttar Pradesh & Ors., (1985) Lab. I.C.

1683 has, however, held that the presiding officer of a Labour Court does not belong to the judicial service of the State as defined in Article 236. The Allahabad High Court's judgment has retied upon the decision of the Court c in Chandra Mohan 's case (supra) for the pmpose of holding that it is only the hierarchy of ordinary civil courts in the narrow sense heade~ by a District Judge which comes under the term "judicial service" under Article 236. The

" view taken by the Allahabad High Court appears to be too narrow a view of the term "judicial service". In Chandra Mohan 's case (supra), this Court was primarily concerned with excluding from judicial service persons who held D 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 Court in the present case is justified in rejecting the narrow view taken in that judgment.

E In the case of Shri Kumar Padma Prasad v. Union of India & Ors., (1992] 2 SCC ~28, this Court had to consider qualifications for the pmpose of appointment as a judge of the High Court nnder Article 217 of the

Constitution. While interpreting the expression "judicial office" nnder 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 Vl F of the Constitution. So construed it means a judicial office which belongs to i the judicial service as defined under Article 236(b ). Therefore, in order to t-· qualify for appointment as judge of a High Court, a person must hold a judicial office_ which must be a part of the judicial service of the State. After referring to the cases of Chandra Mohan (supra) and Statesman (Private)

G 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 situation. The Court said, "Did the framers of the Constitution have this type of officers in mind when they provided a source of appointment to H the high office of a judge of the High Court from amongst the holders of a

STATE v. LABOUR LAW PRACTITIONERS' ASSOC. [SUJAT AV. MANOHAR, J.] 805

"judicial office"? The answer has to be in the negative. We are of the view A --·""' that holder of judicial officer under Article 217 (2)(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 by these tests B laid down as to what constitutes judicial. service under Article 236 of the Constitution, the Labour Court Judges and the judges of the Industrial Court can be held to belong to judicial service. nle hierarchy contemplated in the case of Labour Court judges is the hierarchy of Labour Court judges and Industrial Court judges with eh Industrial Court judges holding the superior position of District Judges. The Labour Courts have also been held as subject C to the High Court's power of superintendence under Article 227.

The decision in the case of Rajasthan State Road Transport Corporation & Anr. v. Krishna Kant & Ors., (1995] 5 SCC 75 is also cited before us. It deals, inter a/ia, with the inter-relationship of jurisdiction of Labour and Industrial Courts as dispute resolving forums with the jurisdiction of civil D courts. It is not directly concerned with the question which is before us.

The constitutional scheme under Chapter V of Part VI de:iling with the High Courts and Chapter VI of Part VI dealing with the subordinate courts shows a clear anxiety on t11e part of the framers of the Constitution to E preserve and promote independence of the judiciary from the executive. Thus Article 23 3 which deals with appointment of District judges requires that such appointments shall be made by the Governor of the State in consultation with the High Court. Article 233(2) has been inte1preted as prescribing that "a person in the service of the Union or the State" can refer only to a person in the judicial service of the Union or the State. Article 234 which deals with F recruitment of persons. other than District Judges to the judicial service requires that their appointments can be made only in accordance with the Rules framed by the Governor of the State after consultation with the State Public Service Commission and with the High Court. Article 235 provides that the control over district courts and courts subordinate thereto shall be vested in the High Court; and Article 236 defines the expression "District Judge" G 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 ofpersons intended to fill the post of the District Judge and other civiljudicial posts inferior to the post of District judge. Therefore, bearing in mind the principle of separation of powers and independence of the judiciary, judicial H

A service contemplates a service exclusively of judicial posts in which there will be a hierarchy headed by a District Judge. The High Court has rightly come '>- -- to the conclusion that the persons presiding over Industrial and Labour

Courts would constitute a judicial service so defined. 111erefore, the recruitment of Labour Court judges is requited to be made in accordance witl1 Article 234

B of the Constitution.

In the premises, the appeal is dismissed. There will, however, be no "*· order as to costs.

R.K.S. I Appeal dismissed.

...

I l