High
Court of Gujarat & Anr Vs. Gujarat Kishan Mazdoor
Panchayat & Ors [2003] Insc 153 (10 March 2003)
Cji.
& Ar. Lakshmanan Ar. Lakshmanan, J.
By
these four appeals, we are called upon to consider the legality, correctness
and validity of the impugned Notification dated 7.12.2000 appointing Shri N.A. Acharya
as the President of the Industrial
Court at Ahmedabad. 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.
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.
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 the relationship between the employers 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 avenue of
promotion except one by way of appointment as President of the Industrial Court
and 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
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 recruited. 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 the High Court by
the Law Officer of the High Court of Gujarat giving all details 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 Industrial Court. The 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 Gujarat 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 Bench held :
"In
the first instance, there is no question of appointment by nomination on the
basis of the proposed Draft Rules by holding that existing Members 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 of
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 the 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 the 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.
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.
Learned
senior counsel appearing for the appellants submitted that 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 from amongst the Members, the President
can also directly be appointed from the sitting or retired High Court Judges.
He further submitted that the High Court failed to appreciate that Section
10(2) of the B.I.R. Act does not envisage the mode of appointment and that the
High Court 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 and, therefore, the High Court has erroneously
read these words in Section 10(2) of the B.I.R. Act. He further submitted that
the High Court failed to appreciate that Section 10(4) of the B.I.R. Act
provides for eligibility criteria and Shri N.A. Acharya fulfills the
eligibility criteria. He further submitted that the High Court proceeded on an
erroneous footing that the B.I.R. Act does not contemplate the appointment by
direct recruitment and only the Members of the Industrial Court from the zone of consideration for appointment to the post
of President, Industrial
Court.
Per
contra, Shri R. Venkataramani, learned senior counsel, appearing for the
respondents, apart from reiterating the contentions in the applications,
submitted that Section 10(2) of the B.I.R. Act clearly indicates that only
Member of Industrial Court is eligible for becoming the President of the
Industrial Court and that becoming Member of the Industrial Court is sine qua
non for being considered for the post of President of the Industrial Court.
According to him, Shri N.A. Acharya does not fulfil any of the three
eligibility conditions mentioned in Section 10(4) of the B.I.R. Act and that
mandatory consultation with the Gujarat Public Service Commission was not
followed. He further urged that the plain and natural meaning of Section 10(2)
of the B.I.R. Act is capable of only one construction and that is only Members of
the Industrial Court could become its President. He
further submitted that unless one is or has been the Judge of the High Court,
the post of the President of the Industrial Court could be filled up only and only by way of promotion,
because there exist only one post for the whole State of Gujarat. He further contended that the
impugned appointment was void and stillborn since the same was not made by His
Excellency, the Governor of Gujarat, but the same was purported to have been
made in the name of the Governor of Gujarat. It was further contended that the
appointment on a judicial post can be made only by His Excellency, the
Governor, under Article 234 of the Constitution of India and the State
Government cannot issue Notification appointing Judicial Officer under the
business rules by and in the name of His Excellency, the Governor of the State.
He further submitted that even assuming the appointment to the post of
President can be made through nomination or direct recruitment, all the Members
of the Industrial Court were qualified for being appointed as President of the
Industrial Court by nomination in accordance with the Draft Rules that were
relied upon by the Government supporting the appointment of Shri N.A. Acharya
and that the Members of the Industrial Court were eligible for appointment by
nomination according to the Draft Rules also and that Rule 2(ii) of the Draft
Rules provides, inter alia, that appointment to the post of President shall be
made either
(a) by
promotion from amongst the Members of the Industrial Court on the basis of
seniority-cum-merit subject to the provision that for being considered as
eligible for such promotion, the Member concerned should have completed five
years' service as a Member of the Industrial Court ;
(b) by
nomination. Draft Rule 3, inter alia, provides that to be eligible for
appointment by nomination, a candidate must have atleast ten years either held
a judicial post in India or been a Advocate of High Court or have expert
knowledge of industrial matters. It was further contended that the appointment
of Shri N.A. Acharya straightaway by nomination without taking into
consideration the cases of nomination of existing Members of the Industrial
Court who had completed ten years' functioning as a Judicial Officer has been
rightly held by the High Court as violative of Articles 14 and 16 of the
Constitution of India and that, therefore, no public appointment can be made in
disregard of consideration of the cases of those who were qualified for the
post.
Arguing
further, learned senior counsel for the respondents, submitted that the
appointment of a Junior Judicial Officer as President of the Industrial Court
without considering the cases of existing Members of the Industrial Court who
are senior on the basis of longer experience on equivalent post will also not
be conducive to the judicial service which, according to him, will result in a
Junior Judicial Officer presiding over Industrial Court who have Members far
senior to the President and that Junior Judicial Officer will thus exercise
administrative powers of control over undisputedly Senior Judicial Officers. It
was further submitted that assuming that a District Judge can be directly
appointed to the post of President, Industrial Court carrying a higher pay scale
than that of the District Judges in Gujarat, and assuming that even if somebody
is already a Member of the Judiciary, he can be nominated or directly appointed
and that he did not pass through the channel of promotion or selection meant
for those who are already in service in view of Article 234 of the
Constitution, even in that case, there was no justification for the High Court
on the administrative side to pick up Shri N.A. Acharya who was 9th in the list
of seniority at the relevant time. He submitted that the appointment of Shri
N.A. Acharya was also vitiated on account of the fact that if nomination or
direct recruitment was a permissible course in the matter of appointment of the
President of the Industrial Court, then a large number of Labour Court Judges,
Advocates apart from the Members of the Industrial Court who had completed ten
years of practice or seven years of judicial work were also qualified for that
appointment and, therefore, they could not be excluded from consideration.
Concluding his arguments, he submitted that the High Court's conclusion that
Section 10(2) of the B.I.R. Act does not provide for nomination or direct
recruitment and someone has to be appointed from amongst the Members of the
Industrial Court only is correct and that there is no other provision in the
entire B.I.R. Act to provide for the mode of appointment of the President of
the Industrial Court. In that view, it is quite reasonable to read Section
10(2) of the B.I.R. Act as providing that President can be appointed only from
amongst the Members.
We
have given our thoughtful consideration on the rival submissions made by the
respective counsel appearing on either side. Before proceeding to consider the
rival submissions, it is useful to reproduce the relevant provisions governing
the controversy which run as follows:
"Section
10. Industrial Court.-
(1)
The State Government shall constitute a Court of Industrial Arbitration.
(2)
The Industrial Court shall consist of three or more
members, one of whom shall be its President.
(3)
Every member of the Industrial
Court shall be a
person who is not connected with the industrial dispute referred to such court
or with any industry directly affected by such dispute:
Provided
that no person shall be deemed to be connected with the industrial dispute or
with the industry by reason only of the fact that he is a shareholder of an
incorporated company which is connected with, or likely to be affected by such
industrial dispute; but in such a case, he shall disclose to the State Government
the nature and extent of the shares held by him in such company.
(4)
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
that-
(a) a
person who has been a Judge not lower in rank than that of Assistant Judge, for
not less than three years; or
(b) a
person who has been the presiding officer of a Labour Court constituted under
any law for the time being in force, for not less than five years; or
(c) a
person who 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 in rank than that of
Assistant Commissioner of Labour under the Sate Government, for not less than
ten years, shall also be eligible for appointment as a member of the Industrial
Court.
Provided
further that, one member of the Industrial Court may be a person not so eligible, if in the opinion of the
State Government he possesses expert knowledge of industrial matters.
DRAFT
RULES
1.
These rules may be called the Recruitment Rules for the post of President, Industrial Court, Gujarat, 1998.
2. The
appointment of President, Industrial Court,
Gujarat, shall be made by the Governor of
Gujarat, in consultation with the Public Service Commission and the High Court,
either-
(a) by
promotion from amongst the Members, Industrial Court on the basis of
seniority-cum-merits provided that a person shall not be eligible to be
promoted to the post of President, Industrial Court, unless he has completed
five years' service on the post of Member, Industrial Court, or
(b) by
nomination.
3. To
be eligible for appointment by nomination, mentioned in rule 2(b), a candidate
must not be connected with any industry as defined in the Bombay Industrial
Relations Act, 1946 and must
(i) not
be less than 45 years of age, and
(ii) have
for at least 10 years either held a judicial post in India or been an Advocate for High Court
or have expert knowledge of Industrial matters.
4. A
person appointed by direct recruitment shall normally be on probation for a
period of one year and shall have to pass an Examination in Hindi and/or
Gujarati, according to the Rules prescribed by the Government.
Existing
Rules The Recruitment Rules for the post of President, Industrial Court ,is as under:
Unless
the post is filled up by appointment of a serving or retired Judge of High
Court, appointment shall be made either
(a) by
nomination or
(b) by
promotion from among the Members of the Industrial Court.
To be
eligible for appointment by nomination, the candidate must not be connected
with any industry as defined in the Bombay Industrial Relations Act, 1946 and
must- (i) not be less than 45 years of age;
(ii) have
for atleast 10 years either held a judicial post in India or been an Advocate for High Court
or have expert knowledge of Industrial matters." In the background of the
facts and circumstances and the provisions of law extracted above, the
following points arise for consideration by this Court :-
(a)
What is the true scope and interpretation of Section 10(2) read with Section
10(4) of the B.I.R. Act ?
(b)
Whether Section 10(2) of the B.I.R. Act can be read to mean that the President
of the Industrial Court must be appointed from among the
existing Members of the Industrial
Court when the
provision in fact is not in such terms?
(c)
Whether the 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
from amongst the Members, the President can also directly be appointed from the
sitting or retired High Court Judges or from the Judges of the City Civil
Court, Ahmedabad and District Judges, who fulfills the eligibility requirement
for appointment as Member of the Industrial Court?
(d)
Whether the High Court has failed to appreciate that Section 10(2) of the
B.I.R. Act does not envisage the mode of appointment? Our attention was drawn
to the relevant pleadings filed before the High Court and also in this Court.
As
already noticed, the appointment of Shri N.A. Acharya as the President of the
Industrial Court vide Notification dated 7.12.2000 issued by the Labour and
Employment Department, Government of Gujarat, is under challenge by way of
these appeals. The circumstances and the process, which had culminated in the
appointment of Shri N.A. Acharya as the President of the Industrial Court, had
been fully narrated in the affidavit in reply filed on behalf of respondent
No.2 in the High Court. Since Shri D.V. Joshi, who was working as the President
of the Industrial Court, was to retire on 31.1.2000 and, therefore, the Labour
and Employment Department, Government of Gujarat, sent a communication dated
7.1.2000 to the High Court of Gujarat, inter alia, stating therein that, due to
the retirement of Shri D.V. Joshi, the post will fall vacant and the question
of preparing recruitment Rules for the post of President of the Industrial
Court is under consideration by the High Court and till the Rules are not
finalized, Government cannot take a decision in respect of the appointment on
the said post. Under these circumstances, it was decided to place the matter
for consideration of the Standing Committee of the High Court of Gujarat, as to
by which mode the post of the President, Industrial Court is to be filled up.
Accordingly, the said matter was considered by the Standing Committee of the
High Court of Gujarat and it was decided on 8.2.2000 that the post of
President, Industrial Court, Ahmedabad, be filled up by nomination under clause
(b) of Rule 2 of the proposed Rules, as none of the present Members of the
Industrial Court is eligible to be appointed to the said post by promotion,
having not completed five years' service on the post of Member, Industrial
Court. The claim of all the incumbents of the post of Member of the Industrial
Court was examined in light of the criteria prescribed by the High Court of
Gujarat for appointment on the post of President of the Industrial Court. It
was decided by the Standing Committee to fill up the post of President of the
Industrial Court by nomination as stated above. In the light of the decision of
the Standing Committee to fill up the post of the President of the Industrial
Court by way of nomination, it was further decided to ask for the willingness
of the Judicial Officers working in the cadres of City Civil Court Judges and
District Judges, who are not less than 45 years of age and have put in ten
years of service in judiciary including the period of practice at the Bar for
being considered for appointment in question. Pursuant to the said decision,
the willingness was called for and in all, nine judicial officers had expressed
willingness for being considered for the post in question, the details of which
have been furnished at page 92 of the paper book.
Thereafter,
the said matter was placed for consideration of the Standing Committee of the
High Court of Gujarat and in the meeting of the Standing Committee held on
30.3.2000, it was decided to direct the office to resubmit the matter along
with the recruitment Rules prescribing eligibility criteria for appointment to
the post of President, Industrial Court. Pursuant to the said decision, the
matter was again considered in the light of the existing Rule provision by the
office. As per the directions of the Standing Committee, the matter was again
placed before the Standing Committee for further consideration along with the
Rule stated above. In the meeting of the Standing Committee of the High Court
held on 1.5.2000, the consideration of the subject was deferred, however, in
the meantime, the office was directed to resubmit the matter, pointing out the
provisions of law in the matter, particularly mentioning the provisions
regarding eligibility, experience and age of superannuation etc. prescribed for
the post in question. Pursuant to the said direction of the Standing Committee,
a detailed note was submitted for consideration of the Standing Committee and
after considering all aspects, in the meeting held on 29.6.2000, the Standing Committee
had taken decision to the effect that the name of Shri N.A. Acharya, Joint
District Judge, Vadodara may be recommended to the Labour and Employment
Department, Government of Gujarat, for appointment as President of the
Industrial Court, Ahmedabad by nomination provided under the Recruitment Rules
for the post in question. Accordingly, the office had sent a communication to
the Government on 5.7.2000 recommending the name of Shri N.A. Acharya for
appointment on the post of President, Industrial Court, Ahmedabad. Soon after
the recommendation was made by the High Court to the Government as aforesaid, a
representation was received by the High Court from Shri B.I. Kazi, the
President, Gujarat Industrial Judges' Association, Ahmedabad in connection with
the filling up of the post of President, Industrial Court, Ahmedabad. In this
connection, Shri Kazi was called for personal hearing on 11.8.2000 and he was
heard by the Chief Justice on the issue. Again, Shri Y.P. Bhatt, President (In-
charge) of the Industrial Court vide his letter dated 4.11.2000 expressed his
unwillingness to be promoted as the President of the Industrial Court.
On the
basis of what is stated above, it is clear that the decision to fill up the
post of the President of the Industrial Court by way of nomination as provided
under the Rules, was arrived at, after considering all aspects, not only that
the process of selecting the person to be recommended to the Government was
also undertaken transparently and before taking the decision, the matter was
considered from time and again by the Standing Committee of the High Court of
Gujarat and after due consideration and deliberations, the decision was taken
to recommend the name of Shri N.A. Acharya. Considering the totality of the
facts, it is clear to us that there is neither illegality nor arbitrariness in
taking the decision of recommending the name of Shri N.A. Acharya for
appointment on the post of President, Industrial Court, Ahmedabad.
It is
seen from the records that at the request of the Government, the eligibility
criteria for appointment on the post of President, Industrial Court has been determined by the High
Court and the same has been incorporated in the Draft Recruitment Rules. We
have already extracted Rules 2 & 3 of the Draft Recruitment Rules. Shri
N.A. Acharya is eligible for the post of the President, Industrial Court, Ahmedabad as he has completed ten
years' service in judiciary including the period of practice at the Bar. The
period of practice/service of Shri N.A. Acharya is given below:- "Period
of Practice/Service or Mr. N.A. Acharya:- 1.8.1978 to 30.11.1983 :- Worked as
Civil Judge(JD) Resigned on :- 30.11.1983 Period of Practice :- Enrolment
No.G/296/1974 on 30.10.74 Practice : 30.10.1974 to 31.7.1978 1.12.1983 to 19.2.1992
From 20.2.1992 to 22.12.1999 -Addl. Public Prosecutor, City Civil Court, Ahmedabad
From 23.12.1999 to 21.12.2000 - Worked in the cadre of District Judge at Vadodara.
From
22.12.2000 - As President, Industrial Court." - 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.
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.
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.
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.
The
appeals are allowed. However, in the facts and circumstances of the case, there
shall be no order as to costs.
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