Statesman (Private) Ltd. Vs. H. R. Deb
& Ors  INSC 89 (2 April 1968)
02/04/1968 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) RAMASWAMI, V.
CITATION: 1968 AIR 1495 1968 SCR (3) 614
RF 1970 SC 694 (6) E 1976 SC2283 (12) RF 1988
SC 404 (6) RF 1992 SC1213 (24)
Industrial Disputes Act (14 of 1947), ss.
7(3)(d) and 2"Judicial Office", if includes Office of Magistrate-Writ
of Quo Warranto-Insuance.
Section 7(3) (d) of the industrial Disputes
Act provides that no person shall be qualified for appointment as the presiding
officer of a Labour 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 appoint the
presiding officer of a Labour Court and he gave an award against the appellant.
The appellant questioned the appointment on the ground that the first
respondent had not held 'judicial office' for 7 years prior to his appointment.
HELD : A Magistrate holds a judicial office.
That his dudes are partly judicial and partly other does not in any way detract
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 entities a man to act in the affairs of others
without their appointment or permission. The office of a Magistrate is a
correct expression in English and in law. The word 'office' has been applied to
The Judicial Officers Protection Act, is
intended to protect not Civil Judges alone but also Magistrate. [620 F-621 C].
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 that the
expression "holding 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 office is primarily 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-D].
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 contemplates 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
at least in an. unclear case the intent of the legislature is entitled to great
weight. The High Court in a quo warranto proceeding should be slow to pronounce
upon the matter unless there is a clear infringement of the law.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 647 of1967.
615 Appeal from the judgment and order dated
January 5, 1967 of the Calcutta High Court in Appeal from Original Order No. 1.34
Sachin Chaudhuri, J. K. Ghosh and D. N.
Gupta, for the appellant.
S. C. Mazumdar 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 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 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 unemployment'. 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 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 adjudicate upon the
dispute inasmuch as the appointment of Mr. Deb was in violation of the
provisions of S. 7 (3) (d) of the Industrial Disputes Act, 1947. On June 16,
1964 by another affidavit the particulars of 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 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, on 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 case delivered
judgment. Two separate judgments were delivered.
Bachawat J. held that the provisions of S. 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 616 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
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) that s. 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 ,-ranted a certificate and this appeal is the
Although this appeal is quite separate 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
jurisdiction and his appointment cannot be called in question. In this view of the
matter the very 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 the Act. They are Works, Committee (s. 3), Conciliation
Officers (S. 4),Boards of, Conciliation (s. 5), Courts of Inquiry (s. 6),
Labour Courts (s. 7), Tribunals (s. 7A), 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 down 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. independent 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 it 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." 617
.lm15 (1) The appropriate Government may, by notification in the Official
Gazette, constitute one or more Labour Courts for the adjudication of industrial
disputes relating to any matter specified in the Second Schedule and for
performing such other functions as 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 office 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." This matter is
covered only by cl. (d) of the third subsection. It may, however, be noticed
that no special qualifications are prescribed for Works Committees,
Conciliation Officers, Boards of Conciliation and Courts of Inquiry such as are
to be found in s. 7 quoted here.
Special qualifications of the members are to be
found only in respect of Labour Courts, Tribunals and National Tribunals. These
are one-man bodies and the qualification of the member is stated. In the case
of Tribunals the qualification is:
(1) (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 (b) he has, for a period of not less than
three years, 618 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.
(3)...A person shall not be qualified for
appointment 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 Court or has held the
office of the chairman or any other member of the Labour Appellate Tribunal for
a period of not ,less than two years.
These 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 Labour Courts constituted under any Provincial Act or State Act for not
less 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
Mr. Deb, the incumbent of the office in the
present case, had at his back the following career :
(a)Sri Hem Ranjan Deb was first appointed on
23rd January 1940 as a Sub Deputy Collector on probation and on 24th January
1940 was appointed as Sub-Deputy Collector and Circle Officer.
619 (b)...On 1st July 1940 he was vested
with, power of a third class Magistrate. He was confirmed in 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 Magistrate and on 1st April 1951
he was vested with powers of a First Class Magistrate ...
On July 27, 1959 Mr. Deb was appointed the
presiding officer of the Second Labour Court by Notification No. 3422-IR/IR/
3A-9/59. The notification read :
"In exercise of power conferred by Subsections
(2) and (3) of S.T. of the Industrial Disputes Act 1947 read with S. 7C of the
said 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 Bengal's
1727-IR/IR/3A-1/58 dated 26th April 1958 vide
Shri Probodh Chandra Maitra (Calcutta Gazettee, 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 s. 7 (3) (d). Government apparently considered the office held
by him from January 23, 1940 to July 27, 1959 as 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 whether it was a 'judicial office'.
If it was then undoubtedly Mr. Deb was qualified. If there be a dispute then
the matter falls to be considered. 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 recast S. 7 in its present form and added ss. 7A, 7B and 7C. Section 9
may now be read but it is 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 the Presiding officer of a Labour Court,
Tribunal or National Tribunal 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 in
the constitution of, such Board or Court." L7 Sup.CI/68-15.
620 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
Foundries 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 service'. 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 demonstrated the difference. In his view magistrates could be said to
occupy judicial office, but they did not belong to judicial 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 English 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. This 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 magistrate lie is a judicial officer.
The dispute, therefore, really reduces itself
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 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 expression in English and in law.
Indeed the well-known maxim of Coke on
Littleton (234a) officia 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 621 there may be an office of a judge (officii
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 difference
between a magistratum and a judeg. His famous saying Magistratum legem esse
loquentem, legem autem mutum magistratum (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
Bachawat J. has given many 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 fall.
But we cannot overlook the fact that even if there be some doubt that is to be
resolved in favour of upholding the appointment on the ground that the
Legislature itself contemplates 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 his 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 III a quo warranto proceeding should be slow to
pronounce upon the matter unless there is a clear infringement of the law. If a
station master were appointed we can readily question the appointment but when
a person 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 ,in 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 its own affect on the
meaning of the expressions 'judicial office' and 'judicial service'. In any
case the use of the same expression in any other enactment not in pari materia
can have no bearing upon the Industrial 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.
Lest our meaning be extended by Government to
cases undeserving of saving under S. 9, we wish to make it clear that the 622
intention of the Legislature really is that men who can be described as
independent and with sufficient judicial experience must be selected. The
mention of High Court 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 which is unique. 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 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
"holding 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 office 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
In the result we are of 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.
The appeal fails and will be dismissed with
Y.P. Appeal dismissed.