TMI Blog2003 (3) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... pplications 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ualified 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 among ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igibility 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 incorpora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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