Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Miscellaneous Writ Petitions Nos. 9761 of 1981 with 14420 of 1982, 185 and 430 of 1983, etc.

Attorney(S)

Sri Markandey Katju.
Standing Counsel.

Judges

S.D Agarwala
S.K Dhaon, JJ.

Acts

Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (hereinafter referred to as the Uttar Pradesh Act 1 of 1957),
S. 4-K of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the Uttar Pradesh Act).
Industrial Disputes Act, 1947 (hereinafter referred to as the Central Act). The Central Act,
Uttar Pradesh Industrial Disputes (Amendment) Act, 1976 (Uttar Pradesh Act 2 of 1966),
Bombay Industrial Relations Act (hereinafter referred to as the Bombay Act)
provisions of the Constitution. Sub-article (1) of Art. 154
Uttar Pradesh Act.6. Section 3 of the Uttar Pradesh Act
S. 4-E the Legislature in Uttar Pradesh Act 1 of 1957,
Uttar Pradesh Act by the Uttar Pradesh Act 1 of 1957.
provisions contained in S. 7 (3) (d) of the Central Act.
S. 3 of the Maharashtra Co-operative Societies Act
Industrial Disputes (Appellate Tribunal) Act, 1950,
Sub-sec. (3) of S. 111 of the Companies Act, 1956.
S. 49 (1) of the Government of India Act, 1935,
1947, rule 81 of the Defence of India Rules
provisions of Ss. 4-D and 4-E. Section 4-D
State Government.Sub-section (2) of S. 4 E
Industrial Disputes (Amendment) Act, 1964,
provisions of the Uttar Pradesh Act
Industrial Tribunals. Sub-section (3)
S. 4-E of the Uttar Pradesh Act
GOVERNMENT OF INDIA ACT 1935
Uttar Pradesh Act 1 of 1937
Uttar Pradesh Act 2 of 1966
INDUSTRIAL DISPUTES ACT
Sub-section (3) of S. 4
Provisions) Act, 1956,
Uttar Pradesh Act
S. 4 D.Section 4 B
S. 4-E. Section 4-E
S. 4 D. Section 4
16. Section 4-F
Section 2 (m)
Section 4 E

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Smart Summary

Structured Summary of the Opinion (Dhaon, J.)

Factual and Procedural Background

This group of writ petitions was filed by employers challenging the jurisdiction of various Labour Courts in Uttar Pradesh. The matters arise from separate references made by the State Government for adjudication of separate industrial disputes under the Uttar Pradesh Industrial Disputes Act (references said to be under S. 4-K of the Act). The common ground of challenge is that the Presiding Officers of the Labour Courts were not qualified for appointment.

Nine Presiding Officers' appointments were specifically impugned: P.C. Kulshrestha, M. Ahsan, A.P. Trivedi, S.P. Singh, J.K. Srivastava, A.B. Karidhal, R.G. Mathur, G.N. Nigam and R.K. Goyal. Some of these officers had died, retired or ceased to be Presiding Officers by the time of these proceedings. The petitions included both matters still pending adjudication and some in which awards or interlocutory orders had already been passed (the latter being cognisable by a Single Judge and therefore not before the Bench delivering this opinion).

Central factual issues identified by the Court included whether a State Labour Service existed in Uttar Pradesh and whether the impugned appointments were made in conformity with the statutory scheme (notably S.4-A(3), S.4-D and S.4-E of the Uttar Pradesh Act) and with constitutional requirements.

Legal Issues Presented

Whether the appointment of the Presiding Officers of the Labour Courts was valid under the Uttar Pradesh Industrial Disputes Act (in particular S. 4-A(3), S.4-D and S.4-E) given the qualifications prescribed.
Whether a State Labour Service existed in Uttar Pradesh at the relevant times and, if so, whether appointments from that service were valid.
Whether Labour Courts (and their Presiding Officers) fall within the "judicial service" concept under Articles 233–237 (and Article 234) of the Constitution, thereby requiring appointment procedures applicable to judicial service.
Whether Clause (e) of sub-section (3) of S.4-A (enrolment in the list prepared under S.4-D) is a substantive source of eligibility or merely a procedural adjunct requiring persons from clauses (a)–(d) to also be enrolled.
Whether S.4-E(2) and the power given to the committee to prepare the list suffer from excessive delegation of legislative power.
Whether the impugned statutory scheme or its application offended Article 14 (equal protection) of the Constitution.
Whether, in particular factual circumstances (as with P.C. Kulshrestha), an initially imperfect appointment could be validated by the passage of time or subsequent fulfillment of the statutory qualification.

Arguments of the Parties

Petitioners' (Employers') Arguments

The Presiding Officers were not qualified for appointment and therefore Labour Courts lacked jurisdiction to adjudicate the disputes referred by the State.
The appointment process for Presiding Officers should conform to the protections/appointment procedures applicable to judicial service under Articles 233–237 (and Article 234) of the Constitution because the Presiding Officers exercise judicial power.
Clause (e) of S.4-A(3) (enrolment in the list under S.4-D) is not an independent source of eligibility; it is procedural and should be read so that enrolment is necessary in addition to falling under clauses (a)–(d) (i.e., the word "or" should be read as "and").
S.4-E(2) amounts to excessive delegation because the committee is left to determine education and practical experience standards without sufficient legislative guidance.
The statutory scheme permits appointment of Presiding Officers from persons less qualified to adjudicate industrial disputes, raising an Article 14 concern (inequality in quality of adjudication).
In relation to P.C. Kulshrestha, counsel argued that an appointment initially invalid could not be validated simply by later events (a submission addressed to the applicability of precedent relied upon by the State).

Respondents' (State / Labour Department) Arguments

The State asserted that a State Labour Service existed and that many of the challenged Presiding Officers were members of that service (e.g., Conciliation Officers, Assistant Labour Commissioners etc.).
The State produced detailed affidavits and historical records (including office memoranda and Public Service Commission resolutions / minutes) showing establishment, recruitment method and recognition of a State Labour Service and inclusion of relevant posts within it.
The committee constituted under S.4-E properly prepared lists under S.4-D and included the names of the persons whose appointments were challenged; selection from that list was valid.
With respect to P.C. Kulshrestha, the State pointed to documentary notifications and to the fact that he had functioned as a Presiding Officer for periods which, when taken together, met the five-year requirement of S.4-A(3)(c); alternatively, his initial supposed shortfall was later cured by subsequent service.
The State relied on authority and established principles (including the doctrine that substantial compliance suffices where formality is missing, and that a service may be constituted by executive action in absence of formal rules) to justify their appointments and administrative actions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sibnath Banerji (A.I.R 1945 P.C. 156)	Interpretation of provision equating the Governor acting "directly or through officers subordinate to him" — showing a Minister is an officer subordinate to the Governor.	Used to support that a Minister (including the Minister for Labour) is subordinate to the Governor and that appointment/allocation of portfolio gives rise to a departmental machinery (Labour Department) and hence to a State Labour Service.
Smt. Godavari Shamrao Paruleker v. State of Maharashtra (A.I.R 1964 S.C. 1128)	Allocation of executive business is made with reference to the three Lists in Schedule VII; allocation provides for contingencies for exercise of executive power.	Applied to conclude that appointment of a Minister with Labour portfolio creates a Labour Department and that civil servants in it become members of a State Labour Service.
J.K. Gas Plant Manufacturing Co. Ltd. v. Emperor (A.I.R 1947 F.C. 38)	Substantial compliance of formal requirements (e.g., orders expressed in Governor's name) is sufficient; form not always mandatory.	Relied upon to hold that absence of a formal order expressed in the Governor's name does not invalidate executive action establishing the Labour Department or service where substance is present.
Dattatraya Moreshwar v. State of Bombay (A.I.R 1952 S.C. 181)	Similar principle of substantial compliance of constitutional/formal requirements.	Reinforced the Court's view that formality omissions do not necessarily void executive action.
Nagarajan (B.) v. State of Mysore (A.I.R 1966 S.C. 1942)	It is not obligatory under proviso to Art. 309 to make recruitment rules before a service can be constituted; State has executive power in respect of State Public Services (List II, entry 41).	Accepted as authority that the State Government can constitute a service and prescribe qualifications even before formal rules are made.
Ramesh Prasad Singh v. State of Bihar (1978-I L.L.N. 333)	In absence of rules, qualifications for a post can validly be laid down in the same executive order creating the service or post.	Used to support the proposition that the executive may create the State Labour Service and prescribe recruitment/qualification procedures.
Hari Nagar Sugar Mills v. Shyam Sunder (A.I.R 1961 S.C. 1669)	Distinction between Courts of civil judicature and Administrative Tribunals; the Constitution's references to "Courts" contemplate ordinary civil courts, not all tribunals.	Applied to reject the submission that the appointment of Presiding Officers of Labour Courts must comply with Chapter VI (Articles 233–237) procedures applicable to ordinary judicial service.
Chandra Mohan v. State of Uttar Pradesh (A.I.R 1966 S.C. 1987)	Interpretation of "judicial service" in Article 236 as a hierarchy of judicial officers exclusively intended to fill posts from the lowest up to District Judge.	Relied upon to hold that Presiding Officers of Labour Courts do not belong to the "judicial service" under Article 236.
Statesman (Private), Ltd. v. H.R. Deb (A.I.R 1968 S.C. 1495)	Recognition that a Magistrate holds a judicial office for purposes of other enactments; contextual meaning of "judicial office" depends on the statute.	Applied to show that comparisons with Chapter VI appointment procedures were misplaced; that terminology in different statutes bears meaning from context.
Bapusaheb Balasaheb Patil v. State of Maharashtra (A.I.R 1975 Bom. 143)	Criteria (as stated by the Full Bench) for treating a tribunal/authority as a "Court": (1) power to give definitive, binding judgments; (2) source of power as judicial power under statute.	Quoted as part of discussion of a Bombay Full Bench approach; the Court contrasted this approach with precedents of the Supreme Court and declined to follow the single-judge decision that applied these criteria to require Article 234 compliance.
Shrimant Shripatrao Dajisaheb Ghatge v. State of Maharashtra (A.I.R 1977 Bom. 384)	Expansion of the above Full Bench reasoning concerning when a tribunal is to be treated as a "Court."	Referred to in context of evaluating the Bombay decisions relied upon by petitioners; the Court disagreed with the single-judge application of those decisions.
Labour Law Practitioners' Association v. State of Maharashtra (1979-II L.L.N. 224)	Single-judge decision that Labour Courts constituted "judicial service" within Article 236 and appointment must conform to Article 234.	The Court respectfully disagreed with that decision, finding it inconsistent with Supreme Court dicta and the constitutional scheme examined in this opinion.
Hari Shanker Prasad Gupta v. Sukhdeo Prasad (A.I.R 1954 All. 227)	Principle that if a person was not qualified on the date of appointment but became qualified by the date of hearing, the tribunal/body was not necessarily improperly constituted.	Applied to hold that even if P.C. Kulshrestha had not completed five years at the moment of a particular appointment, subsequent completion validated his status.
R. v. Lord Newborough (L.R. 4 Q.B. 585)	Doctrine (expressed in Latin) quod fieri non debet factum valet — acts done contrary to formal requirements may be upheld where acted upon and accepted (principle of validation by conduct / acceptance).	Invoked to support the view that Kulshrestha's continuous functioning and acceptance of his role precluded reopening the validity of his appointment.

Court's Reasoning and Analysis

The Court's analysis proceeded in several linked steps, each based on the text of the statute, constitutional provisions and documentary material placed before it:

Legislative and statutory history: The Court reviewed the origin and amendments of the Uttar Pradesh Industrial Disputes Act, including how provisions enabling constitution of Labour Courts and criteria for Presiding Officers evolved (notably provisions introduced by Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act 1956 / UP Act 1 of 1957 and subsequent amendments). The Court recited the relevant statutory scheme: S.4-A(3) listing five distinct categories of eligibility (clauses (a)–(e)); S.4-D requiring preparation of lists; and S.4-E constituting a committee to prepare the lists and prescribing categories eligible for enrolment.
Existence of State Labour Service: Having examined documentary material (office memoranda, minutes of Public Service Commission meetings, Department correspondence and records, and affidavits filed by State officials Kamala Kant and Shrikrishna), the Court concluded that a State Labour Service did, in fact, exist at the relevant times. The Court quoted and relied upon office memoranda dated 9 January 1953, 25 January 1960, and primarily an Office Memorandum dated 29 November 1966 and other material including a 1961 memorandum regarding Assistant Labour Commissioners, to show recruitment methods and the composition of the State Labour Service.
Constitutional/Executive power to constitute services: The Court examined Articles 154, 162 and 166 of the Constitution and relevant Supreme Court authority to hold that the executive possesses power under Art.162 to constitute State Public Services (including State Labour Service) in absence of occupying legislation or rules. The Court relied on precedent (e.g., Nagarajan, Ramesh Prasad Singh) to support that executive action may validly create a service and prescribe qualifications even before formal rules under Art.309 are framed.
Nature of Labour Courts and applicability of Chapter VI (Articles 233–237): The Court addressed the petitioners' contention that Presiding Officers belonged to the "judicial service" requiring selection under Chapter VI. Relying on Supreme Court decisions (Hari Nagar Sugar Mills; Chandra Mohan; Statesman v. H.R. Deb), the Court concluded that the Constitution's Chapter VI relates to the ordinary courts of civil judicature and a special definition of "judicial service" in Art.236 is exhaustive and confined to the hierarchy ending with the District Judge. Consequently, Labour Courts are not part of the "judicial service" for the purposes of Articles 233–237 and Article 234 appointment mechanics did not apply.
Interpretation of S.4-A(3) and S.4-E: The Court rejected the petitioners' contention that clause (e) of S.4-A(3) is merely procedural and that enrolment under S.4-D is required in addition to satisfying clauses (a)–(d). The Court read clauses (a)–(e) as five separate, distinct fields of recruitment. It observed that S.4-E(3)'s specified categories (IAS, State Higher Judicial Service, Uttar Pradesh Nyayik Sewa, State Labour Service, State Civil Service with three years' Labour Department experience) made sense only if clause (e) were substantive and separate. The Court held clause (e) to be substantive and that there was no requirement that persons in (a)–(d) must also be in the S.4-D list.
Delegation challenge to S.4-E(2): The Court considered the objection of excessive delegation. It found that the legislature had supplied clear policy and confined the committee's role to executing that policy. The committee's composition (including a former or sitting High Court Judge, Chief Secretary, Secretary in Labour Department, Legal Remembrancer, and a Public Service Commission member) and the statutory limits on eligible categories meant the committee did not exercise unfettered legislative power. The Court rejected the delegation challenge.
Article 14/data-equality submission: The Court considered the equal protection challenge that persons picked from the S.4-D list may be less suited than those from clauses (a)–(d). The Court regarded this as speculative and rejected it: there was no direct challenge to clause (e)'s vires, and the list-selection was subject to judicial review on ordinary grounds of administrative action. The legislature's choice of multiple recruitment streams did not, per se, violate Article 14.
Factual validation of appointments and committee procedure: The Court inspected the committee meetings and lists prepared under S.4-E and S.4-D (meetings on 28 February 1978; 18 April 1979; 30 December 1980) and found the challenged officers' names included. The Court concluded the committee had considered cases in accordance with the Act's principles and that selection from the list was valid.
Specific assessment of P.C. Kulshrestha: The Court noted documentary evidence of notifications and periods during which Kulshrestha functioned as Presiding Officer and concluded that, even if at one appointment date he had not completed five years, subsequent service meant he had, in effect, fulfilled S.4-A(3)(c). The Court applied the reasoning in Hari Shanker Prasad Gupta and the doctrine illustrated by R. v. Lord Newborough (quod fieri non debet factum valet) to hold his appointment could not be reopened and was now valid.
Final assessment: On the combined statutory interpretation, documentary proof of a State Labour Service, validity of the committee process, and factual records about the officers' service, the Court found the appointments of all nine challenged Presiding Officers to be valid.

Holding and Implications

Holding: The writ petitions challenging the appointments of the various Presiding Officers of the Labour Courts are dismissed. The Court held that the appointments of the nine Presiding Officers impugned in these petitions were valid in law (including P.C. Kulshrestha as specifically assessed). There shall be no order as to costs.

Implications:

The immediate legal consequence is that the Labour Courts whose Presiding Officers were challenged retain jurisdiction to adjudicate the industrial disputes referred to them; the appointments underpinning that adjudicatory machinery were upheld.
The Court interpreted S.4-A(3) to allow five distinct streams of eligibility (clauses (a)–(e)) and held clause (e) (enrolment under S.4-D) to be a substantive independent source of recruitment; S.4-E committee selection was not an unconstitutional delegation.
The Court rejected the contention that Labour Courts fall within the "judicial service" of Articles 233–237 and therefore concluded that Article 234-style appointment mechanics do not apply to Presiding Officers of Labour Courts.
The opinion confined its conclusions to challenges to appointments; the Court expressly left open the petitioners' ability to raise other contentions either before the Labour Courts or after final awards are given.
The Court refused an oral request for a certificate for leave to appeal to the Supreme Court under Article 133(1), finding no substantial question of law of general importance arising.
The Court did not order costs against the petitioners. The judgment thus resolves the appointment challenges but does not purport to create a new rule beyond its statutory and constitutional interpretations as applied to the facts before it.

Note: This summary is confined strictly to matters recited in the provided opinion and does not add or infer facts beyond the text of that opinion.

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Poysha Industrial Company, Ltd., Ghaziabad v. State Of Uttar Pradesh And Others

Dhaon, J.:— This bunch of writ petitions, at the instance of employers, stem from separate references made for the adjudication of separate industrial disputes between the petitioners and their employees. These references have been made by the State Government in the purported exercise of powers under S. 4-K of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter referred to as the Uttar Pradesh Act). In cage of the petitions, the jurisdiction of the various Labour Courts constituted in the State is under challenge.

2. A large number of writ petitions have been preferred in this Court. In all the petitions, the appointment of the Presiding Officers of the various Labour Courts has been questioned. In the petitions before us, the disputes are still pending their adjudication. In the other writ petitions either the awards have been given by the respective Labour Courts or some interlocutory order has been passed by them. According to the rules of the Court, cases in which an award has been given or an interlocutory order has been passed are cognisable by a learned Single Judge. Those cases, therefore, are not before us.

3. The jurisdiction of the Labour Courts to adjudicate upon the disputes is being questioned on the ground that their respective Presiding Officers are not qualified for appointment as the Presiding Officers. Appointments of nine Presiding Officers have been challenged before us. They are Sarvasri P.C Kulshrestha, M. Ahsan, A.P Trivedi, S.P Singh, J.K Srivastava, A.B Karidhal, R.G Mathur, G.N Nigam and R.K Goyal. Barring Sarvasri P.C Kulshrestha, S.P Singh and A.B Karidhal, some amongst the Presiding Officers have either died or retired or have ceased to be the Presiding Officers. It is the common case of the parties that the aforementioned Presiding Officers were appointed on the footing that they were members of the State Labour Service. Did the State Labour Service come into existence at any stage in the State ? For answering this question we may briefly refer to the legislative history of the enactment.

4. The Uttar Pradesh Act was preceded by the Industrial Disputes Act, 1947 (hereinafter referred to as the Central Act). The Central Act, as originally enacted did not contain any provision for the creation of a Labour Court. The Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, made such a provision and laid down certain qualification for persons being appointed as the Presiding Officer. One of the qualifications was that a person should have been the Presiding Officer of a Labour Court constituted under any Provincial Act for not less than five years (this provision exists even now). By the Industrial Disputes (Amendment) Act, 1964, the field of eligibility was enlarged.

5. In March 1947, rule 81 of the Defence of India Rules read with the Emergency Powers (Continuance) Ordinance, 1946, expired. The need to meet the situation of labour unrest that prevailed after the termination of the World War II, by a proper legislation was realised. The Central Act, which was applicable to this State, then known as United Provinces, was enforced on 11 March 1947. It was, however, felt that the provisions of the Central Act were not sufficient to meet the special circumstances of industrial peace in the United Provinces. Therefore, the United Provinces Industrial Disputes Ordinance (Uttar Pradesh Ordinance 11 of 1947), was promulgated and brought into force on 14 May 1947. This Ordinance was replaced by the Uttar Pradesh Act.

6. Section 3 of the Uttar Pradesh Act empowered the Provincial Government to make provision for appointing Industrial Courts and for referring any industrial dispute for conciliation or adjudication. It is to be noted that the provisions of the Uttar Pradesh Act were absolutely silent regarding the Presiding Officers of the Industrial Courts. The provisions, it appears, conferred a blanket power upon the Provincial Government to nominate a Presiding Officer of an Industrial Court. No qualification either in the positive form or in the negative form had been provided for the person presiding over an Industrial Court.

7. The Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (hereinafter referred to as the Uttar Pradesh Act 1 of 1957), introduced drastic changes in the Uttar Pradesh Act. It inserted many new provisions. Section 2 (m) defined a Labour Court to mean a Court constituted under S. 4-A. Section 4-A empowered the State Government to constitute one or more Labour Courts. Such a Court was to consist of one person only to be appointed by the State Government. Sub-section (3) of S. 4 A laid down that a person shall not be qualified to be appointed as a Presiding Officer unless—

(a) he had held any judicial office in India for not less than 7 years; or

(b) he was enrolled in the list prepared under S. 4 D.

Section 4 B empowered the State Government to constitute one or more Industrial Tribunals. Sub-section (3) thereof provided that a person shall not be appointed as a Presiding Officer of a Tribunal unless he held certain offices specified in either Cl. (a) or Cl. (b) or he was enrolled in the list prepared in accordance with S. 4 D. Section 4 D enjoined that the State Government shall cause to be prepared a list of persons who may be appointed as the Presiding Officer either of a Labour Court or an Industrial Tribunal. Section 4 E provided for the constitution of a committee of four persons whose task was to prepare the lists referred to in S. 4 D. In Sub-sec. (3) of S. 4-E it was provided that no person who was not or who had not been a member of certain service including the State Labour Service was eligible for enrolment in the lists prepared by the committee.

8. By the Uttar Pradesh Industrial Disputes (Amendment) Act, 1976 (Uttar Pradesh Act 2 of 1966), certain other categories of persons were made eligible for becoming a Presiding Officer of a Labour Court. These were in addition to Cls. (a) and (b) in S. 4 A.

9. Our Constitution has a federal structure. Nonetheless it is modelled on the British Parliamentary systems. The primary responsibility in the formulation of the governmental policy and its transmission into law vests in the executive, but the executive does not enjoy an absolute power as it is answerable for all its acts to the Legislature. In fact, the condition precedent to the exercise of the said responsibility by the executive is its retaining the confidence of the Legislature. The executive has to act subject to the control of the Legislature.

10. In political science officials form the permanent executive as distinguished from Ministers, who form the political executive. The Ministers are responsible for the acts of the permanent executive. The Minister, incharge of a particular department is answerable to the Legislature regarding whatever is done by an official in his department. We must take judicial notice of the fact that in this State there was at the relevant time and there is even today a Minister for Labour, and, therefore, there was and there is a Ministry of Labour and under the Minister of Labour, there was and there is a Labour Department. Indeed, in S. 4-E the Legislature in Uttar Pradesh Act 1 of 1957, recognises the existence of the Secretary to the Government in the Labour Department. This department is responsible for all the questions relating to the conditions of the labour and employment.

11. The Labour Department, like the other departments, is staffed by administrative, professional, technical, executive and clerical officers who constitute the civil service. There are, various grades in the civil service. The organisation within a department is hierarchical.

12. A department comes into existence ipso facto by the appointment of a Minister and the allocation a of particular portfolio to him. As a natural corollary, the personnels employed in the Labour Department and who are already members of the civil service, become automatically members of the State Labour Service.

13. Let us now examine the relevant provisions of the Constitution. Sub-article (1) of Art. 154 provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution. Article 162 provides that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. Sub-article (1) of Art. 166 provides that all executive action of the Government of State shall be expressed to be taken in the name of the Governor. Sub-article (3) of Art. 166 mandates that the Governor shall make rules for the transaction of the business of the Government of State, and for the allocation amongst the Ministers of the said business. This is subject to an exception that the business should not be one with respect to which the Governor is required to act in his discretion. In Sibnath Banerji case [A.I.R 1945 P.C 156], the Privy Council had occasion interpret S. 49 (1) of the Government of India Act, 1935, the crucial words of which were:

“the executive authority of a province shall be exercised on behalf of His Majesty by the Governor, either directly or through officers subordinate to him …”

and the Judicial Committee held that the Home, Minister was an officer subordinate to the Governor within the meaning of S. 49 (1). The expression “through officers subordinate to him” has been bodily lifted from S. 49(1) of the Government of India Act, 1935, and put in Sub-art. (1) of Art. 154 of the Constitution. It is, therefore, in the scheme of our Constitution that a Minister is an officer subordinate to the Governor.

14. The Government of the State is carried on in the name of the Governor and a Minister is part of the Government. Sub-article (3) of Art. 166 should be read along with Sub-art. (1) of Art. 154. We have already seen that the executive power of the State is co-extensive with the legislative power. It can be exercised with respect to all the matters with respect to which the State Legislature can make a law. Therefore, the allocation of business referred to in Sub-art. (3) of Art. 166 is referable to the three lists contained in Sch. VII. In the instant cases entries (22) and (24) in List III are to be considered. The former entry talks of trade union; industrial and labour disputes and the latter entry comprises welfare of labour including the conditions of work, provident funds, employers' liability, workmen's compensation, invalidity and old age pension and maternity benefits In the Government of India Act, 1935, entry (29) in List III in Sch. VIII empowered the Central as well as the Provincial or Presidency Legislature to legislate on “trade unions industrial and labour disputes. “In Smt. Godavari Shamrao Paru-leker v. State of Maharashtra [A.I.R 1964 S.C 1128], it was held that the allocation of business is made with reference to the three Lists in Sch. VII and the allocation provides for all contigencies which may arise for the exercise of the executive power. The conclusion is, therefore, irresistible that the appointment of a Minister by the Governor and the allocation of the portfolio of Labour to him, without more gives birth to a Labour Department with the Minister concerned as its head. Obviously the department cannot work in a vacuum. It has to be manned by officials functioning on hierarchical system having the status of civil servants being part of the civil service of the State. A State Labour Service automatically comes into existence and the civil servants working in the Labour Department automatically become the members of the State Labour Service.

15. In this State, so far, neither any legislation has been passed nor any rule has been framed by the Governor under Art. 309 of the Constitution for either creating or constituting the State Labour Service. This does not mean that the State Government is powerless to bring into existence a regularly constituted State Labour Service. Entry (41) in List II in Sch. VII of the Constitution comprises State Public Services and State Public Service Commission. We have already referred to Art. 162. The executive power referred to therein extends to entry (41) in List II. So long as the field covered by the said entry is not occupied either by a law passed by a Legislature or by a rule framed under Art. 309, power can be exercised by the Governor under Art. 162 to provide for all or some of the eventualities concerning the State Public Services including the State Labour Service. In the exercise of powers under Art. 162, the executive can constitute any State Public Service including the State Labour Service. A bare reading of the provisions contained in Art. 309 will show that the same are not mandatory. They merely enable the Legislature to provide for the recruitment and conditions of service of persons appointed to public services. Likewise, the provisions enable the Governor to frame rules. In Nagarajan (B.) v. State of Mysore [A.I.R 1966 S.C 1942], the Supreme Court held that it is not obligatory under proviso to Art. 309 to make rules of recruitment, etc., before a service can be constituted or post created or filled. It also held that the State Government has executive power in relation to all matters with respect to which the Legislature of the State has power to make laws. It accordingly held that the State Government will have executive power in respect of List II, entry (41), “State Public Services.” In Ramesh Prasad Singh v. State of Bihar [1978-I L.L.N 333], the Supreme Court held that in the absence of rules, qualifications for a post can validly be laid down in the selfsame executive order creating the service or post and filling it up according to those qualifications.

16. Section 4-F was inserted into the Uttar Pradesh Act by the Uttar Pradesh Act 1 of 1957. This provision empowered the State Government to appoint such persons as it thought fit to be Conciliation Officers, charged with the duty of mediating in, and permitting the settlements of the industrial disputes. Such officers could be appointed for a specified area or areas. It is nobody's case, and it cannot be, that the Conciliation Officers were not appointed in the Labour Department. In Civil Miscellaneous Writ Petition No. 1290 of 1981, Heatly and Grasham (India), Ltd., Ghaziabad v. State of Uttar Pradesh, detailed counter-affidavit has been filed on behalf of the State by one Sri Kamala Kant. A supplementary counter-affidavit was filed on behalf of the State by one Sri Shrikrishna. Copies of the affidavits filed by Sri Kamla Kant and Sri Shrikrishna were served upon the learned counsel for the petitioners before us and they were given chance to submit their respective replies thereto. Besides the affidavits filed by or on behalf of the State, the relevant record has been placed before us by the State. Adequate opportunity has been afforded to the learned counsel for the petitioners to look into the record. In his affidavit Sri Kamala Kant has averred that the post of a Conciliation Officer forms part of the State Labour Service, class II in the Labour Department of the State. It has also been stated that the posts of Assistant Labour Commissioner and the Deputy Labour Commissioner from part of the Uttar Pradesh State Labour Service I in the Labour Department. Annexure CA 1 to the counter-affidavit of Sri Kamala Kant is an order, dated 9 January 1953, by which certain persons were appointed in the State Labour Service, class II, in the Labour Department. Annexure CA2 to the said affidavit is the order, dated 25 January 1960, passed by Government showing that the rules applicable to State Industrial Service class II, were made applicable to State Labour Service class II in the Labour Department. From a perusal of the D.O No. 1903.E, dated 18 December 1962, from the Labour Commissioner Uttar Pradesh to the Deputy Secretary, Labour Department, Lucknow, it transpires that even prior to 1962, class II officers in the Labour Department were ultimately came to be known as the members of the State Labour Service class II (scale Rs. 250-850). Paragraph 2 of the said letter is relevant and is extracted:

“2. State Labour Service class II (scale Rs. 250-850). The Ayog have suggested that recruitment to the posts of Conciliation Officers and Labour Officers in the Labour Department should be made through the combined competitive examination for recruitment to the other State Services. There are the following other posts in the State Labour Service class II in the same scale of pay:

(a) Deputy Chief Inspector of Shops and Commercial Establishments;

(b) Standing Orders Officer;

(d) Trade Union Inspector.

I suggest that all these posts excepting the post of Labour Officer (Statistics) may also be filled up through the same competitive examination. However, considering that basic knowledge of Economics, which has been kept an essential qualification for appointment to these posts, is very necessary to enable these officers to perform their duties in a reasonably satisfactory manner, I suggest that the candidates who offer themselves for these posts should be required to offer at least two of the following four optional subjects prescribed in the syllabus for the combined examination, namely:

(a) Economics;

(b) Public Economics;

(d) Statistics.

[Each carrying 100 marks].”

17. Thereafter the record contains the proceedings of the meeting held on 22 December 1962, under the Chairmanship of Chairman, Public Service Commission, Uttar Pradesh. From these proceedings it is clear that prior to 22 December 1962, when the meeting took place selection to the posts of the State Labour Services were made on the bays of interview and it was thereafter suggested that the recruitment to these posts be made on the basis of a combined competitive examination. (iii) of the first resolution in the said meeting is quoted below:

“(iii) It was also agreed that recruitment to the following services may be made on the basis of the abovementioned competitive examination—

(1) Uttar Pradesh Jails Executive (Superintendents of Jails) Service.

(2) Uttar Pradesh Co-operative Service (Assistant Registrars).

(3) Uttar Pradesh Industries Service (District Industries Officers).

(4) Uttar Pradesh Cane Service (Assistant, Cane Commissioners and Sugar Cane Inspectors).

(5) Uttar Pradesh Agriculture Service (District Agriculture Officers).

(6) State Employment Service (Sub-Regional Employment Officers, Employment Liaison Officers, Employment Market Information Officers and Regional Vocation Guidance Officers).

(7) State Labour Service (Conciliation Officers, Labour Officers, Deputy Chief Inspector of Shops and Commercial Establishments, Standing Orders Officers, Deputy Registrar of Trade Unions and Trade Union Inspectors).”

18. Thereafter correspondence went on between various departments of the State and the Public Service Commission and ultimately the resolutions of the meeting, dated 22 December 1962, were accepted by the State of Uttar Pradesh and an office memorandum, dated 29 November 1966, was issued by the State of Uttar Pradesh. The said office memorandum, which would show that there was in existence a State Labour Service, is quoted below:

“Government of Uttar Pradesh Appointment (B) Department No. 10/2/66 Apptt. (B), Dated Lucknow, 29 November 1966.

OFFICE MEMORANDUM

The undersigned is directed to say that at the meeting held on 22 December 1962, to consider the proposal for the combination of the examination for recruitment to various State and Subordinate Services within the purview of the Ayog, it was, inter alia, agreed that recruitment to the State Services mentioned below should be made on the basis of the combined competitive examination:

(1) Uttar Pradesh Civil Services (Executive Branch).

(2) Uttar Pradesh Civil Service (Judicial Branch).

(3) Uttar Pradesh Judicial Officers Service.

(4) Superior Forest Service.

(5) Uttar Pradesh Jails Executive. (Superintendent of Jails) Service.

(6) Uttar Pradesh Co-operative Service (Assistant Registrars).

(7) Uttar Pradesh Industries Service District Industries Officer, Grade I)

(8) Uttar Pradesh Cane Service (Assistant Cane Commissioners and Sugarcane Inspectors).

(9) Uttar Pradesh Agriculture Service (District Agriculture Officers).

(10) State Employment Services (Sub-Regional Employment Officers, Employment Liaison Officers, Employment Market Information Officers and Regional Vocation Guidance Officers).

(11) State Labour Service (Conciliation Officers, Labour Officers, Deputy Chief Inspectors of Shops and Commercial Establishments, Standing Orders Officers, Deputy Registrar of Trade Unions, Trade Union Inspectors).

(12) Assistant Welfare Officers.

(13) Assistant Registrars of Trade Unions.

(14) Assistant Labour Welfare Officers.

(15) Uttar Pradesh Education Service (District Inspectors of Schools).

Besides the above services, it appears that a combined competitive examination is being held by the Ayog for recruitment to the following services:

(1) Uttar Pradesh Civil Service (Executive Branch).

(2) Uttar Pradesh Police Service.

(3) Uttar Pradesh Finance and Accounts Service.

(4) Uttar Pradesh Sales Tax Service.

(5) Regional Audit Services under the Co-operative and Panchayat Audit Organisation, Uttar Pradesh.

(6) Posts of Assistant Regional Trans port Officers in the Transport Organisation, Uttar Pradesh.

(7) Post of Assistant General Manager, Uttar Pradesh Government Roadways in the Transport Organization.

2. So far as Appointment (B) Department are concerned the decision has already been taken that the Uttar Pradesh Civil Service (Judicial Branch) and Judicial Officers Services, cannot be included in the combined competitive examination for the State services. It is not clear what final decision has been taken by the departments concerned with other services. The departments concerned are, therefore, requested to intimate the present position as regards the proposal for holding combined competitive, examination in respect of the State services with which they are concerned.

3. The position regarding amendment in the service rules on the basis of the decision taken at the meeting held on 22 December 1962, may also kindly be intimated in respect of the services mentioned above.

(M. Zainuddin)

Sahayak Sachiv.

Forest (A)/Home (Jails)/Co-operative (A)/Transport (A)/Industries (A)/Agriculture (B)/Labour (D)/Social Welfare and Education (B) Department.

19. From this office memorandum it is dear that there was a State Labour Service and similarly there were other services in existence, the name which was given to these services depended upon the fact as to in which department the post was created. The persons who were appointed in the Labour Department became the members of the State Labour Service.

20. From the above facts it is absolutely clear that there is in existence the State Labour Service, the method of recruitment has also been laid down and the rules which will be applicable to them have also been specified. It is further clear from the office memorandum, dated 9 June 1961, that the ports of Assistant Labour Commissioners were also declared as forming a separate unit within the cadre of State Labour Service class II and the seniority of the Assistant Labour Commissioners who were then in existence was determined accordingly. The office memorandum, dated 9 June 1961, is quoted below:

“OFFICE MEMORANDUM

Consequent on declaring the posts of Assistant Labour Commissioner as forming a separate unit within the cadre of State Labour Service, class II, the question of determining the inter se seniority of the Assistant Labour Commissioner had been under the consideration of Government. After inviting objections of the officers concerned, the matter has been carefully examined and Government have been pleased to determine the seniority of the officers in the unit as under:

Sl. No Name of officer in order of seniority (1) Sri J. Prasad, Assistant Labour Commissioner at present officiating Deputy Labour Commissioner. (2) Sri S.P Singh, Assistant Labour Commissioner. (3) Sri M. Ahasan, Assistant Labour Commissioner. (4) Sri P. Tewari, Assistant Labour Commissioner.

(S.P Pandy)

Uttar Pradesh Sachiv.

No. 1474.XXXVI (B)-8/1960

Copy forwarded for information to:

“(1) Labour Commissioner, Uttar Pradesh Box No. 220, Kanpur; and

(2) officers concerned.

By order

(S.P Pande)

Uttar Pradesh Sachiv.”

On the basis of the above material, we hold that at the relevant time there existed and even today there exists a State Labour Service.

21. It is true that no formal order in conformity with the requirement of Sub-art. (1) of Art. 166 has been produced before us. The requirement of the sub-article is that an executive action of the Government of State shall be expressed to be taken in the name of the Governor. However, it is now well-settled that the said provisions are not mandatory but are merely directory and the substance of the matter and not the form is decisive of the question as to whether an order has, in fact, been passed by the State Government. Substantial compliance of the provisions of Sub-art. (1) of Art. 166 is enough to sustain an order. See J.K Gas Plant Manufacturing Company, Ltd. v. Emperor [A.I.R 1947 F.C 38] and Dattatraya Moreshwar v. State of Bombay [A.I.R 1952 S.C 181]. In Ramesh Prasad Singh case [1978-I L.L.N 333] (vide supra), in Para. 6, the Supreme Court held that the creation of service or department can be inferred from the letter of appointment.

22. That apart, we have already held that the existence of the State Labour Service is implicit in the creation of the Department of Labour in the Government of Uttar Pradesh and this department owes its birth to the appointment of a Minister by the Governor and the allocation of the portfolio of Labour to such a Minister in the purported exercise of powers under Sub-art. (1) of Art. 154 read with Sub-art. (3) of Art. 166 of the Constitution.

23. The Indian Constitution does not accept strict doctrine of separation of powers. Yet, it strives for an independent judiciary. The constituent assembly realised that

“it is the subordinate judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question.”

At the time the Constitution was made, in most of the States, the Magistracy was under the direct control of the executive. In the pre-independence India there was a strong agitation that the judiciary should be separated from the executive. The emphasis was that the independence of the judiciary at the lower level should be secured. That is why in the directive principles of the State policy (Art. 50), the State is expected to take Steps to separate the judiciary from the executive in the public services of the State. To borrow the language of the Supreme Court in Chandra Mohan v. State of Uttar Pradesh [A.I.R 1966 S.C 1987], Article 50 means

“there shall be a separate judicial service free from the executive control.”

24. Articles 233 to 237 reflect anxiety of the architects of our Constitution to secure the independence of the subordinate judiciary. Indeed Chap. VI of Part VI under which the said articles fall has the heading “Sub ordinate Courts.” These provisions are not incorporated in Part XIV which deals with the services under the Union and the State, but they are given a place immediately after the provisions in regard to the High Courts. The control over the District Courts and the Courts subordinate thereto vests in the High Court. This includes disciplinary control or disciplinary jurisdiction of the High Court over the Presiding Judges, i.e, the District Judges and the Judges subordinate to him. The High Court is made the sole custodian of the subordinate judiciary. It is empowered to control the conduct and discipline of the Judges of the subordinate judiciary. In Chap. VI of Part VI a distinction is maintained between Courts and Tribunals. Do the provisions as contained in Chap. VI, Part VI, attract Administrative Tribunals ? This question has been answered in the negative by Hon'ble Justice Sri Hidayatullah (as then he was) in Hari Nagar Sugar Mills v. Shyam Sunder [A.I.R 1961 S.C 1669], in the following words:

“With the growth of civilization and the problems of the border life, a large number of Administrative Tribunals have come into existence. These Tribunals have the authorities of law to pronounce upon valuable rights; they Act in judicial manner and even on evidence on oath, but they are not part of the ordinary Courts of civil judicature. They share the exercise of the judicial power of the State but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to Courts, but are not Courts. When the Constitution speaks of ‘Courts’ in Arts. 136, 227 or Art. 228 or in Arts. 230 to 237 or in the lists, it contemplates Courts of civil judicature but not Tribunals other than such Courts. This is the reason for using both the expressions in Arts. 136 and 227.”

[Emphasis supplied.]

25. In Hari Nagar Sugar Mills case [A.I.R 1961 S.C 1669] (vide supra), the question was whether the Central Government acted as a Tribunal within the meaning of Art. 136 when it passed an order in an appeal under Sub-sec. (3) of S. 111 of the Companies Act, 1956. The majority view was in the affirmative and the minority view of Hon'ble Justice Sri Hidayatullah was in the negative, His Lordship while drawing a distinction between a Tribunal and a Court made the aforequoted observations. The majority of the Hon'ble Judges have not taken a view contrary to the view of Hon'ble Justice Sri Hidayatullah in so far as the afore-quoted dictum is concerned. Therefore, the submission made on behalf of the petitioners that the appointment of the Presiding Officers of the Labour Court should have been made in accordance with the provisions contained in Art. 234 of the Constitution, stands completely negatived.

26. The provisions contained in Art. 234 have been pressed into service on the premise that the Presiding Officer of a Labour Court exercises the judicial powers of the State. The argument proceeds that a Presiding Officer holds a civil judicial post. In Art. 236 the expression “judicial service” means a service consisting exclusively of persons intended to fill up the post of the District Judge and other civil judicial post inferior to the post of the District Judge. We need not dilate upon the question as to what is the import of the expression “judicial service” as we have an authoritative pronouncement of the Supreme Court on this point in Chandra Mohan case [A.I.R 1966 S.C 1987] (vide supra). The Supreme Court observed:

“the definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers started from the lowest and ending with District Judge. The expressions ‘exclusively’ and ‘intended’ emphasise the fact 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 the exclusive service of judicial officers.”

In our opinion, this clearly demonstrates that a Presiding Officer of a Labour Court does not belong to the “judicial service” as contemplated in Art. 236.

Article 237 may also be read:

“The Governor may by public notification direct that the foregoing provisions of this chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of Magistrates in the Sates as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification.”

The fact that the Magistrates also exercise the judicial power of the State, cannot be denied. Yet the provisions of Chap. VI were not made applicable to them. Such Magistrates, in the absence of a notification as contemplated in Art. 237, continue to be the appointees of the executive independent of the High Court. The provisions as contained in Art. 237 show that the expression “judicial service” has been used in a special sense in Art. 236 and the same does not cover all and sundry who exercise judicial powers of State.

27. In Statesman (Private), Ltd. v. H.R Deb [A.I.R 1968 S.C 1495], the facts were these. An award was given by a Labour Court which was presided by one Sri H.R Deb. The employer challenged the validity of the award on the ground that Sri Deb had not been appointed in conformity with the provisions contained in S. 7 (3) (d) of the Central Act. According to this provision a person shall not be qualified for appointment as a Presiding Officer of a Labour Court unless he has held any judicial office in India for not less than 7 years. The writ petition was dismissed by the High Court and the special appeal too was dismissed. The Supreme Court too endorsed the view of the High Court and took the view that Sri Deb, a Magistrate, held a judicial office. Before the Supreme Court the argument was that if it is held that a Magistrate holds a judicial office, he will claim to be appointed a Judge of the High Court. This argument was repelled thus:

“Nor does the argument that the Magistrates will claim to be appointed Judges of the High Court need detain us. The scheme of Chap. VI of Part VI of the Constitution has its own effect on the meaning of the expression ‘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.”

On a parity of reasoning given in this case it can be safely held that for the purpose of the appointment of a Presiding Officer of a Labour Court under the Uttar Pradesh Act a reference to the provisions contained in Chap. VI of Part VI of the Constitution is out of place.

28. Strong reliance is placed upon a decision of a learned Single Judge of the Bombay High Court in Labour Law Practitioners' Association v. State of Maharashtra [1979-II L.L.N 224], in support of the contention that the appointment of the Presiding Judges of the Labour Court should have been made in conformity with the provisions contained in Art. 234 of the Constitution. In this case, the legality of the appointments as the Presiding Officers of the Labour Courts was challenged. The learned Judge held that the Labour Courts as created under the Bombay Industrial Relations Act (hereinafter referred to as the Bombay Act) constituted the judicial service of the State as contemplated by Art. 234 of the Constitution. He also held that the posts of the Labour Courts were civil judicial posts and such posts were inferior to the post of the District Judge. The learned Judge relied upon two Full Bench decisions of the Bombay High Court. They were:

(1) Bapusaheb Balasaheb Patil v. The State Of Maharashtra* [A.I.R 1975 Bom. 143]; and

(2) Shrimant Shripatrao Dajisaheb Ghatge v. The State Of Maharashtra* [A.I.R 1977 Bom. 384].

In the first case, the question was whether an officer on special duty appointed by the State Government under S. 3 of the Maharashtra Co-operative Societies Act was a “Court.” The Court approached the problem thus:

“Having regard to the aforesaid authorities and the relevant observations from each of the authorities, which we have quoted above, it appears to us very clear that mainly two criteria have been laid down by the decided cases in order to constitute the Tribunal a Court. In the first place, the Tribunal or an authority would be a Court if it is given power to give a definitive judgment or a decision which has finality and authoritativeness that would bind the parties appearing before it so far as the rights litigated before it are concerned and secondly the appointment of the Tribunal or an authority as well as source of its power must be judicial power of the State coming to it by the Statute itself and then such Tribunal or Authority would be a Court.”

29. It answered the question in the affirmative. In the second case, the Court posed the question for its consideration:

“What is the true effect of deletion of the words ‘and Tribunal’ from original Art. 227 and addition of the words ‘subject to its appellate jurisdiction’ after the words ‘all Courts’ in the amended Art. 227 on the High Court's power of judicial superintendence such has been retained under the amended article.”

The Court answered the question that any Tribunal which fulfilled the two criteria as laid down in Bapusaheb Balasaheb Patil case [A.I.R 1975 Bom. 143] (vide supra), (as quoted above) will constitute a “Court” within the meaning of the amended Art. 227. It is pertinent to note that in the two cases the question of the applicability of Art. 234 did not arise.

30. The learned Judge in Labour Law Practitioners' Association case [1979-II L.L.N 224] (vide supra), recorded a finding that the two aforementioned criteria were fulfilled by a Labour Court and, there fore, it constituted the judicial service of the State within the meaning of Art. 236. In our opinion, the learned Judge overlooked the crucial fact that Chap. VI of Part VI of the Constitution was confined in its operation for regular Civil and Criminal Courts constituted under the hierarchy of the Courts. He also glossed over the inherent scheme of the said chapter that the members of the judicial service were required to be the subordinates of District Judge. Further, the view taken by the learned Judge runs counter ro the dictum of Hon'ble Justice Sri Hidayatullah in Hari Nagar Sugar Mill case [A.I.R 1961 S.C 1669] (vide supra), that Arts. 233 to 237 operate with respect to ordinary Courts of civil judicature, the decision of the Supreme Court in Chandra Mohan case [A.I.R 1966 S.C 1987] (vide supra), on the interpretation of the word “judicial service” in Art. 236 that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with the District Judges and the emphasis given therein on the expressions “expressly” and “intended” in the definition of “judicial service.” It also appears that the attention of the learned Judge was not drawn to the decision of the Supreme Court in Statesman case [A.I.R 1968 S.C 1495] (vide supra). In sum, the view expressed by the learned Judge that the provisions as contained in Art. 234 of the Constitution are attracted in the case of the appointment of the Presiding Officers of the Labour Courts is diametrically opposed to the aforementioned decisions of the Supreme Court. We, therefore, respectfully disagree with the view taken by the learned Judge.

31. We are now left with the contentions advanced on behalf of the petitioners on the interpretation of the relevant provisions. It is, therefore, appropriate that some provisions may be read. Let us start with Sub-sec. (3) of S. 4-A which runs as follows:

“(3) A person shall not be qualified for appointment as the Presiding Officer of a Labour Court, unless—

(a) he has for a period of not less than three years, 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; or

Provincial Act or State Act for a period of not less than five years; or

(d) he has held any Judicial Office in India for not less than seven years; or

(e) he is enrolled in the list prepared under S. 4-D.”

We have already pointed out that Cls. (d) and (e) were for the first time introduced into the Uttar Pradesh Act by the Uttar Pradesh Act 1 of 1957 as Cls. (a) and (b) and these clauses were renumbered as Cls. (d) and (e) by the Uttar Pradesh Act 2 of 1966 whereby the existing Cls. (a) to (c) were inserted.

32. Two submissions, which are interrelated with each other, have been advanced to demonstrate that Cl. (e) is not a distinct and separate field from which a Presiding Officer of a Labour Court can be recruited. They are: (1) Clause (e) is not a substantive provision but a procedural provision. The word “or” in Cl. (d) should be read as “and.” The submission is that the qualifications for the appointment of a person as the Presiding Officer of a Labour Court are confined to Cls. (a) to (d) and the intention of the Legislature is that even if a person falls in either of the categories mentioned in Cls. (a) to (d) his name must necessarily be enrolled in the list prepared under S. 4-D as contemplated by Cl. (e). In order to appreciate this submission we will have to briefly read the provisions of Ss. 4-D and 4-E. Section 4-D provides that for the purpose of constituting a Labour Court under S. 4-A the State Government shall cause to be prepared a list of all persons who may be appointed as Presiding Officer of a Labour Court. The provision also requires that the State Government shall maintain a list by making such alterations therein as may, from time to time, be reported by the committee appointed under S. 4-E. Section 4-E provides for the constitution of the committee referred to in S. 4-D. According to it, the committee shall consist of the following:

(i) A Chairman who shall be appointed by the State Government and shall be a person who is or has been a Judge of a High Court.

(ii) the Chief Secretary of the State Government;

(iii) the Secretary to the State Government in the Labour Department;

(iv) the legal remembrancer to the State Government; and

(v) a person who is, or has been, a Member of a Public Service Commission, appointed by the State Government.

Sub-section (2) of S. 4 E provides that the committee constituted under Sub-sec (1) shall, in the manner prescribed prepare the list of persons who may be appointed as Presiding Officer of a Labour Court having regard to the education and practical experience of the persons in the matters relating to labour and industry. Subsection (3) is important. It provides that no person who is not or who has not been a Member of the Indian Administrative Service or the state Higher Judicial Service, or the Uttar Pradesh Nyayik Sewa or the State Labour Service or who is not or who has not been such member of the State Civil Service (Executive Branch) and has experience of working of at least three years in the Labour Department of the State shall be eligible for enrolment in the list prepared for the purpose of constituting a Labour Court. It will be immediately seen that the two submissions if accepted, will render the provisions as contained in Sub-sec. (3) of S. 4 E redundant. The categories of the services mentioned in the said provision do not find place in Cls. (a) to (d) in Sub-sec. (3) of S. 4 A. The argument overlooks the fact that Sub-sec. (3) of S. 4 E has been enacted merely for the purpose of preparing the list referred to in Cl. (e) of Sub-sec. (3) of S. 4 A. The Legislature did so as it clearly envisaged five different fields of recruitment to the Office of the Presiding Officer of a Labour Court. The four categories of persons mentioned in Cls. (a) to (d) are separate and distinct and there is no overlapping amongst each other. The fifth category as contained in Cl. (e), if read along with Sub-sec. (3) of S. 4 E, also becomes a separate and distinct entity. The Legislature has taken due care to provide that only those persons who are or who have been members of the different services mentioned in Sub-sec. (3) will be included in the list prepared under S. 4 D. The conclusion, therefore, is irresistible that the provision as contained in Cl. (e) of Sub-sec. (3) of S. 4-A is a substantive provision. This also answers the contention that persons falling in Cls. (a) to (d) cannot be appointed as Presiding Officers unless they find themselves enrolled in the list prepared under S. 4 D.

33. We have already pointed out that initially in Sub-sec. (3) of S. 4-A Cls. (d) and (e) found place as Cls. (a) and (b) and there occurred an “or” between Cls. (a) and (b). Surely, the Legislature could not have intended in the Uttar Pradesh Act 1 of 1937 that a Presiding Officer of a Labour Court could be appointed only from one category, namely, persons who held any judicial office in India for not less than seven years. Besides, there being no ambiguity in the provisions and there being no difficulty in treating the five categories in Cls. (a) to (e) as separate, a Court of law, in the context of the provisions would be re-writing the provisions or performing a legislative act if it does not read the word “or” as “or” and instead substitutes the word “and” for “or.”

34. It is also contended that the provision as contained in Sub-sec. (2) of S. 4 E suffers from the vice of excessive delegation of legislative powers. Before examining this contention we must bear in mind that in S. 4-E a high powered committee has been envisaged. Then, the choice of the committee to include a person in the list prepared by it is confined to the Members of the Indian Administrative Service, State Higher Judicial Service, Uttar Pradesh Nyayik Sewa, State Labour Service and the State Civil Service (Executive Branch). The discretion of the committee to include a member of the State Civil Service (Executive Branch) in the list is circumscribed by the condition that such a member should have an experience of working for at least three years in the Labour Department of the State. It will be thus seen that far from delegating the essential legislative functions the Legislature has not left any legislative function at all to be performed by the members of the committee. The committee has been left with the task of merely executing the legislative policy which has been laid down in clear and unequivocal terms. The committee has not been given an absolute discretion to include all and sundry who are members of the various services mentioned in Sub-sec. (3). The further condition is that the committee should have due regard to the education and practical experience of persons in matters relating to labour and industry. The argument that wide discretionary powers have been conferred upon the committee, inasmuch as no standard or criterion has been provided regarding education and practical experience in matters relating to labour and industry, is not available to the petitioners as the Legislature has assigned this task to a committee which does not consist of only high dignitaries but of those who possess specialised knowledge of matters concerning, labour and industry. The contention, therefore, must fail.

35. A submission has been advanced on the basis of an alleged violation of the provisions contained in Art. 14 of the Constitution. The argument is that a person who is picked up for appointment from the list prepared under S. 4 D will not be so well acquainted in the administration of labour laws as those falling in the categories contained in Cls. (a) to (d) of Sub-sec. (3) of S. 4 A and, therefore, justice of equal standard will be denied to a citizen. This submission is, on the face of it, fallacious. It is to be noted that the vires of Cl. (e) in Sub sec. (3) of S. 4 A has not been challenged on any ground and rightly so. A certain class of dispute is required to be referred for adjudication to the Labour Court. It is true that different Labour Courts may have Presiding Officers recruited from different sources as enumerated in Cls. (a) to (e), but this fact alone will not affect the jurisdiction of the Labour Court concerned to which a dispute has been referred for adjudication. The argument is really based on fear. It should be presumed that the high powered committee has selected a proper person for being enrolled in the list. It is also to be presumed that a Presiding Officer appointed from the list will render an award which will be equal in quality and content to the awards rendered by those who fall in the categories mentioned in Cls. (a) to (d). It is well known that no one has a substantive or vested right to get an adjudication from a particular forum-The only right given by the Legislature is of getting an adjudication of an injury, grievance or dispute. The choice of the forum is always in the wisdom of the Legislature. It is also to be remembered that the appointment of a person as Presiding Officer from the list prepared under S. 4-D is always open to challenge on the well-known grounds. But then, the challenge will be with respect to the execution of legislative policy by the committee. In other words, the action of the committee will be the subject-matter of the scrutiny of the Court and any discrimination by the State within the ambit of Art, 14 of the Constitution will not arise.

36. We may, at this stage, briefly refer to the proceedings of the committee constituted under S. 4-E of the Uttar Pradesh Act for the purpose of preparing the list referred to in S. 4 D. From the record produced before us it is apparent that on 28 February 1978, a meeting of the committee was held under the Chairmanship of Justice Sri J.K Tandon, a retired Judge of this Court, and the committee prepared the list. In this list, we find the names of Sarvasri A.P Trivedi, G.N Nigam, R.G Mathur and A.B Karidhal. Another meeting was held on 18 April 1979, under the Chairmanship of Justice Sri Umesh Chandra Srivastava a sitting Judge of this Court. In this list, we find the names of Sarvasri Mohammad Ahsan and R.K Goel. Yet another meeting of the committee was held on 30 December 1980, under the Chairmanship of Justice Sri Umesh Chandra Srivastava. In this list, we find the names of Sarvasri P.C Kulshrestha, J.K Srivastava and S.P Singh. It is thus clear that a committee was constituted in accordance with S. 4 E, the committee considered the cases of all the persons in accordance with the principles laid down in the Uttar Pradesh Act and it included the names of persons in the list having the requisite qualifications. We have, therefore, no hesitation in recording a finding that the selection of the Presiding Officers from the list prepared by the committee was a valid one. We have already shown that all the persons whose appointments have been challenged in this Court had been enrolled in the list prepared under S. 4-D of the Act.

37. The respondents, however, raised one contention in particular in regard to the validity of the appointment of Sri P.S Kulshrestha. In the supplementary counter-affidavit of Sri Shrikrishna in Para. 5 it has been stated that Sri Kulshrestha functioned as Presiding Officer, Labour Court, Agra, during the period 23 October 1970 to 27 October 1974. This appointment had been made by notification, dated 14 October 1970. It has been further stated that by notification, dated 27 January 1981, Sri Kulshreshtha was again appointed to function as Presiding Officer of the Labour Court, Gorakhpur, where he worked from 24 to 31 January 1981. He was thereafter transferred as Presiding Officer, Labour Court, Ghaziabad, vide notification, dated 16 February 1981, and there he took charge of the Office of Presiding Officer, Ghaziabad, on 1 February 1981, and as such Sri P.C Kulshreshtha has functioned as a Presiding Officer of the Labour Court for more than six years. The argument of the respondents on the basis of these facts is that so far as Sri P.C Kulshreshtha is concerned, his appointment is valid even under S. 4-A (3) (c) of the Act as he has worked as a Presiding Officer of the Labour Courts in the State of Uttar Pradesh for not less than five years. These facts are undisputed and consequently so far as Sri P.C Kulshreshtha is concerned, his appointment is a valid appointment under the above section.

38. There is one other aspect of the matter. Even if on 1 February 1981, when Sri P.C Kulshreshtha was appointed as Presiding Officer, Labour Court, Ghaziabad, he did not complete five years but then thereafter he did complete his five years and now an appointment which may have been invalid has been validated by passage of time. Reliance in this connection has been placed on the Full Bench decision of this Court in Hari Shanker Prasad Gupta v. Sukhdeo Prasad [A.I.R 1954 All. 227]. In this case Sukhdeo Prasad a practising advocate, was appointed as a Member of the Election Tribunal. The Full Bench took the view that even if Sukhdeo Prasad was not qualified on the date of his appointment, he was qualified on the date when the matter came up for hearing before the Court and as such the Full Bench declined to hold that the Election Tribunal was not properly constituted. The principle laid down in the said case is fully applicable in the facts of the present case. Even if Sri P.C Kulshreshtha did not complete his five years as a Presiding Officer of the Labour Court when he was appointed as the Presiding Officer of the Labour Court at Ghaziabad, but after functioning for some time when his appointment was not challenged at all, he completed his five years as a Presiding Officer. In this view of the matter, it would not be a case where the appointment of Sri P.C Kulshreshtha could be declared to be invalid as now he is clearly a validly appointed officer under S. 4 A (3) (c) of the Act.

39. Learned counsel for one of the petitioners urged that the ratio of the decision in Hari Shanker Prasad Gupta case [A.I.R 1954 All. 227] (vide supra), will have no application in a situation where the initial appointment itself was invalid. He developed his submission by pointing out that in that case it was nobody's case that the person concerned could not be enrolled as an advocate. In our opinion, in the instant case, the doctrine as contained in the maxim quod fierinon debet factum valet (an act done contrary to the express direction or established practice of the law will not be found to invalidate the subsequent proceedings) will apply. In R. v. Lord Newhorough [L.R 4 Q.B 585] the question was as to the payment of special constables by a county treasurer, neither the appointment of these constables, nor the order for their payment, having been made in accordance with the requirements of the Special Constables Act, 1931, Lush, J., held that as the order for payment had been acted upon, the account allowed and the money paid, the proceedings should not be reopened. Applying this principle it can be safely said that Sri Kulshreshtha having been allowed to function as the Presiding Officer of the various Labour Courts for the requisite number of years, his initial appointment as a Presiding Officer cannot be reopened and questioned.

40. From the office memorandum, dated 29 November 1966, it is clear that the State Labour Service consists of Conciliation Officers, Labour Officers, Deputy Chief Inspectors of Shops and Commercial Establishments, Standing Orders Officer, Deputy Registrar of Trade Unions and Trade Union Inspectors. It is, further clear from the office memorandum, dated 9 June 1961, that the Assistant Labour Commissioner also forms a separate unit within the cadre of State Labour Service.

41. In the affidavit of Sri Shrikrishna it has been clearly stated that Sri P.C Kulshreshtha. Sri M. Ahsan, Sri A.P Trivedi, Sri J.K Srivastava, Sri S.P Singh, Sri A.B Karidhal. Sri G.G Mathur and Sri G.N Nigam had worked as Conciliation Officers as well as Assistant Labour Commissioners. Therefore, they clearly belong to the State Labour Service. Their names have already been included in the list by the committee. So far as Sri R.K Goel is concerned, he is from Indian Administrative Service and his name also finds place in the list prepared by the committee. In view of the above, we are of the opinion that the appointment of all the nine Presiding Officers of the Labour Courts whose appointments have been impugned in these writ petitions are valid in law.

42. In the instant case, the appointment of Sri P.C Kulshreshtha has been challenged. We accordingly hold that Sri P.C Kulshreshtha was validly appointed as Presiding Officer of the Labour Court.

43. On 6 April 1983, one of us (Hon'ble Justice Sri S.D Agarwala, J.), disposed of the applications for interim relief made by the petitioners who are before us and by other petitioners who are not before us as their writ petitions are cognisable by a Single Judge of this Court. The contentions which were advanced before us plus some additional contentions were met by one of us in the order, dated 6 April 1983. We fully endorse the view taken in the order, dated 6 April 1983, on the contentions which have been advanced before us.

44. We have confined our judgment to the challenge to the appointment of the various Presiding Officers. We make it clear that it will be open to the petitioners to raise all or any of the contentions which are also the subject-matter of these writ petitions either before the Labour Courts concerned or after the final award has been given by them.

45. All the submissions made on behalf of the petitioners having failed, the writ petitions are dismissed, but there shall be no order as to costs.

46. After the judgment was delivered, learned counsel for the petitioners made an oral prayer that a certificate be granted for leave to appeal to the Supreme Court under Art. 133(1) of the Constitution of India. In our opinion, no substantial question of law of general importance arises and neither, in our opinion, the said questions need to be decided by the Supreme Court. Under the circumstances, the oral prayer made for leave to appeal is hereby rejected.

Poysha Industrial Company, Ltd., Ghaziabad v. State Of Uttar Pradesh And Others

Structured Summary of the Opinion (Dhaon, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' (Employers') Arguments

Respondents' (State / Labour Department) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Poysha Industrial Company, Ltd., Ghaziabad v. State Of Uttar Pradesh And Others

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