TMI Blog1968 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue 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. 5. We are concerned with s. 7 which provides for the constitution of Labour Courts and prescribes the qualifications for appointment. The section may be read here : 7. Labour Courts. (1) The appropriate Government may, by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 difficulty arises. 8. 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. (b) On 1st July 1940 he was vested with power of a third class Magistrate. He was confirmed in the post of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 11. 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. 12. Now the points for us to decide are first whether Mr. Deb held a 'judicial office' and next even if our opinion by 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. 13. Banerjee J. who first heard the Hanuman Foundries case made a distinction between 'judicial office' and 'judicial function' and came to the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 15. Once this is so held the appeal must fail. 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 has shut out inquiry. The provisions of s. 7(3)(d) therefore, are not so absolute as to be wholly mandatory in the same way as the provisions of other clauses are since they admit of no doubt, and therefore do not require construction. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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