Chief justice and Baratha Chakravarthy order/ In view thereof, it is no longer possible for any State Government or Union of India to appoint anybody else, more specifically Deputy Labour Commissioner etc., as Presiding Officer of the Industrial Tribunal. Thus, it can be seen that virtually the impugned clauses in Section 7 or 7-A cannot be operated anymore. Thus, both the provisions that are challenged at present remain dead letters in the statute book, only to be repealed by an appropriate repeal act.

THE HON’BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY,J.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

ORDERS RESERVED ON: 02.04.2024
ORDERS PRONOUNCED ON: 23.04.2024
CORAM :

THE HON’BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

Writ Petition No.23527 of 2010

K.M.Ramesh
Secretary
Labour Law Practitioners’ Association
157, Addl. Law Chambers
High Court Buildings
Chennai – 600 104. .. Petitioner
Versus

1. Union of India
   Rep.by its Secretary
   Ministry of Labour & Employment
   New Delhi.

2.The Secretary to Government
Ministry of Law
Union of India, New Delhi.

3.The General Secretary
Central Industrial Relations/CLS Officers Association
C/o. Office of the Chief Labour Commissioner (Central)
Shram Shakti Bhawan, Rafi Marg
New Delhi – 110 001.

(R3 impleaded as per order of this Court
dated 29.07.2015 in M.P.No.1 of 2015) .. Respondents

Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Declaration, declaring Section 7 and 7A of the Industrial Disputes (Amendment) Act, 2010 (No.24 of 2010) published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (ii) dated 15.09.2010 as ultra vires, unconstitutional and illegal.

For the Petitioner : Mr.S.Kumaraswamy
For the Respondents: Mr.A.R.L.Sundaresan, ASGI
Mr.A.Kumaraguru, SCGPC
for RR1 & 2

Mr.D.Ranndranathan for R3

ORDER

(Order made by the Hon’ble Mr. Justice D.Bharatha Chakravarthy)

This Writ Petition is filed to declare Sections 7 and 7A of the Industrial Disputes (Amendment) Act, 2010 (Act No.24 of 2010) published vide Gazette of India, Extraordinary, Part II, Section 3, Subsection (ii) dated 15.09.2010 as ultra vires, unconstitutional and illegal.

2. We have heard Mr.S.Kumaraswamy, learned counsel appearing on behalf of the petitioner and Mr.A.R.L.Sundaresan, learned Additional Solicitor General of India for respondents 1 and 2 and Mr.M.D.Ranndranathan, learned counsel appearing on behalf of the 3rd respondent.
3. After hearing the learned counsel on either side and perusing the relevant records of the case, this Writ Petition would require no further orders from us, for the following facts:-

3.1 As far as Section 7 of the Industrial Disputes Act (hereinafter referred to as ‘the Act’) is concerned, feeling aggrieved by the very same contention that by the impugned amendment, the Deputy Labour Commissioners, etc., who are not part of the District Judicial Services were made eligible to be appointed as Presiding Officers of the Labour Court, Labour Law Practitioners’ Association and others approached the Bombay High Court inter – alia praying that the amended Section 7 of the Act was void and illegal and contrary to Article 234 of the Constitution of India.

3.2 The learned Single Judge of the Bombay High Court after considering the issue on hand, held that the Labour Court being a Judicial Tribunal should be manned only by a District Judge and further directed that the post of the Presiding Officer of the Labour Court be filled up only as per Article 234 of the Constitution of India, i.e., from among the District Judges. The intra Court appeal which was preferred was dismissed by a Division Bench and further appeal was preferred before the Hon’ble Supreme Court of India.

3.3 The Hon’ble Supreme Court of India considered the matter in detail in the State of Maharashtra Vs. Labour Law Practitioners Association and Ors.1 and affirmed the Judgment of the Bombay High Court and disposed of the appeal with the following directions and it is essential to extract paragraphs Nos.20 and 21 of the said Judgment which read as follows:-
“20. The constitutional scheme under Chapter V of Part VI dealing with the High Courts and Chapter VI of Part VI dealing with the subordinate courts shows a clear anxiety on the part of the framers of the Constitution to preserve and promote independence of the judiciary from the executive. Thus Article 233 which deals with appointment of District Judges requires that such appointments shall be made by the Governor of the State in consultation with the High Court. Article 233(2) has been interpreted as prescribing that “a person in the service of the Union or the State” can refer only to a person in the judicial service of the Union or the State. Article 234 which deals with recruitment of persons other than District Judges to the judicial service requires that their appointments can be made only in accordance with the Rules framed by the Governor of the State after consultation with the State Public Service Commission and with the High Court. Article 235 provides that the control over district courts and courts subordinate thereto shall be vested in the High Court; and Article 236 defines the expression “District Judge” extensively as covering judges of a City Civil Court etc. as earlier set out, and the expression “judicial service” as meaning a service consisting exclusively of persons intended to fill the post of the District Judge and other civil judicial posts inferior to the post of District Judge. Therefore, bearing in mind the principle of separation of powers and independence of the judiciary, judicial service contemplates a service exclusively of judicial posts in which there will be a hierarchy headed by a District Judge. The High Court has rightly come to the conclusion that the persons presiding over Industrial and Labour Courts would constitute a judicial service so defined. Therefore, the recruitment of Labour Court judges is required to be made in accordance with Article 234 of the Constitution.

21. In the premises, the appeal is dismissed. There will, however, be no order as to costs.”

3.4 Thus, Section 7 has practically been held as unconstitutional for all practical purposes. The impugned provision, viz., to appoint the Presiding Officer of the Labour Court from among the Deputy Labour Commissioners etc., cannot be enforced anymore by anyone concerned.

3.5 As far as Section 7A of the Act is concerned, the impugned amendment introduces a similar clause enabling the filling up of the post of Presiding Officer of the Labour Tribunal from among the Deputy Labour Commissioners etc.,. The impugned clause is extracted hereunder:-
“ 7A. Tribunals.
(1) The appropriate Government may, by notification in the Official Gazette, constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter, whether specified in the Second Schedule or the Third Schedule, [and for performing such other functions as may be assigned to them under this Act] [ Inserted by Act 46 of 1982, Section 4 (w.e.f. 21.8.1984).].
[(1A) The Industrial Tribunal constituted by the Central Government under sub-section (1) shall also exercise, on and from the commencement of Part XIV of Chapter VI of the Finance Act, 2017, the jurisdiction, powers and authority conferred on the Tribunal referred to in section 7D of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952).]
(2) A Tribunal 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 Tribunal unless-
(a)he is, or has been, a Judge of a High Court; or
(aa)[ he has, for a period of not less than three years, been a District Judge or an Additional District Judge; ] [Inserted by Act 36 of 1964, Section 4 (w.e.f. 19.12.1964).][*] [The word ” or” and Cl. (b) omitted by Act 46 of 1982, Section 4 (w.e.f. 21.8.1984).]
(b)[ he is or has been a Deputy Chief Labour Commissioner (Central) or Joint Commissioner of the State Labour Department, having a degree in law and at least seven years’ experience in the labour department including three years of experience as Conciliation Officer: Provided that no such Deputy Chief Labour Commissioner or Joint Labour Commissioner shall be appointed unless he resigns from the service of the Central Government or State Government, as the case may be, before being appointed as the presiding officer; or [Clause added by Act 24 of 2010 (w.e.f. 18.8.2010) ]
(c)he is an officer of Indian Legal Service in Grade III with three years’ experience in the grade.]
(4)The appropriate Government may, if it so thinks fit, appoint two persons as assessors to advise the Tribunal in the proceeding before it.”
(emphasis supplied)
3.6 The said clause is again challenged before this Court, on the ground of violation of separation of judicial powers, on account of the judicial Tribunal being manned by a non-judicial person, i.e., a person who is not a District Judge and who is not qualified to be a District Judge, in the teeth of the dictum of the Hon’ble Supreme Court of India in Madras Bar Association Vs. Union of India and Anr.2,

3.7 However, when the present Writ Petition was pending, the Government of India enacted the Finance Act, 2017 (Act 7 of 2017). Whereby, it further amended Section 7A of the Act, by introducing Section 7 D, which reads as hereunder:-
“7D. Notwithstanding anything contained in this Act, the qualifications, appointment, term of office, salaries and allowances, resignation and removal and other terms and conditions of service of the Presiding Officer of the Industrial Tribunal appointed by the Central Government under sub-section (1) of section 7A, shall, after the commencement of Part XIV of Chapter VI of the Finance Act, 2017, be governed by the provisions of section 184 of that Act: Provided that the Presiding Officer appointed before the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall continue to be governed by the provisions of this Act, and the rules made thereunder as if the provisions of section 184 of the Finance Act, 2017 had not come into force.”.
3.8 Thus, as per Section 7D, the post of Presiding Officer of the Industrial Tribunal had to be filled up following Section 184 of the aforementioned Finance Act. The said Section 184 is extracted hereunder:-
“184. (1) The Central Government may, by notification, make rules to provide for qualifications, appointment, term of office, salaries and allowances, resignation, removal and the other terms and conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authorities as specified in column (2) of the Eighth Schedule: Provided that the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or other Authority shall hold office for such term as specified in the rules made by the Central Government but not exceeding five years from the date on which he enters upon his office and shall be eligible for reappointment: Provided further that no Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member shall hold office as such after he has attained such age as specified in the rules made by the Central Government which shall not exceed,— (a) in the case of Chairperson, Chairman or President, the age of seventy years; (b) in the case of Vice-Chairperson, Vice-Chairman, Vice-President, Presiding Officer or any other Member, the age of sixty-seven years: (2) Neither the salary and allowances nor the other terms and conditions of service of Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President, Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case may be, other Authority may be varied to his disadvantage after his appointment.”

3.9 Thus, it can be seen that after the new Section 7 D read with Section 184, with coming into force of the said Finance Act, the criteria mentioned in Section 7 (A) (3) (a) to (c) were virtually nullified and then onwards, the post of Presiding Officer is to be filled up as per Section 7 D which in turn states that the post has to be filled up as per Section 184 of the Finance Act.

3.10 As per Section 184, the post has to be filled up in accordance with the rules, which are periodically framed by the Government of India. In exercise of the said powers, the Government of India framed the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020. The above Finance Act as well as the Rules came to be challenged before the Hon’ble Supreme Court of India in Rojer Mathew v. South Indian Bank Ltd. And ors.3 The Hon’ble Supreme Court of India considered the validity of the Finance Act as well as the rules framed by the Government of India. A specific question, whether the Parliament can bring in these provisions in a Finance Bill was referred to a larger Bench. The validity of Section 184 of the Finance Act, which was challenged on the grounds of excessive delegation was upheld. The rules that were framed enabling respondents 1 and 2, to appoint the persons who are not District Judges and who are not qualified to be appointed as District Judges as Presiding Officers of the Industrial Tribunal, were expressly held to be unconstitutional and liber was granted to the Central Government to frame fresh rules in compliance with the directions given in the said Judgment.

3.11 In the meanwhile, the Government of India, enacted the Tribunal Reforms Act, 2021 (Act 33 of 2021). The said Act again amended Section 7 D and the amended Section 7D reads as follows :
“7D. Qualifications, terms and conditions of service of Presiding Officer.—Notwithstanding anything contained in this Act, the qualifications, appointment, term of office, salaries and allowances, resignation and removal and other terms and conditions of service of the Presiding Officer of the Industrial Tribunal appointed by the Central Government under sub-section (1) of section 7A, shall, after the commencement of 3 [the Tribunals Reforms Act, 2021, be governed by the provisions of Chapter II of the said Act]: Provided that the Presiding Officer appointed before the commencement of Part XIV of Chapter VI of the Finance Act, 2017, shall continue to be governed by the provisions of this Act, and the rules made thereunder as if the provisions of section 184 of the Finance Act, 2017 had not come into force.”

3.12 As per the amended Act, Section 7 D of the Industrial Disputes Act, now the post of Presiding Officer has to be filled up as per the Rules that may be framed by the Central Government in the exercise of its powers under the Tribunal Reforms Act, 2021. By exercising the powers, the new rules, viz., the Tribunal (Conditions of Service) Rules, 2021 are framed by the Government of India vide GSR.635 (E) dated 15.09.2021. As per Rule 3 (1), the qualifications for a Presiding Officer of an Industrial Tribunal are as follows:-
“Qualifications. – (1) In case of Industrial Tribunal under the Industrial Disputes Act, 1947 (14 of 1947), a person shall not be qualified for appointment as Presiding Officer, unless he,-
(a) is, or has been, a Judge of a High Court; or
(b) has, for a combined period of ten years, been a District Judge and Additional District Judge.”

3.13 Therefore, now any person can be appointed as a Presiding Officer of an Industrial Tribunal if only he is or has been a Judge of a High Court or has put in combined service of 10 years as District Judge and Additional District Judge.

4. In view thereof, it is no longer possible for any State Government or Union of India to appoint anybody else, more specifically Deputy Labour Commissioner etc., as Presiding Officer of the Industrial Tribunal. Thus, it can be seen that virtually the impugned clauses in Section 7 or 7-A cannot be operated anymore. Thus, both the provisions that are challenged at present remain dead letters in the statute book, only to be repealed by an appropriate repeal act.
5. In view thereof, no further order is necessary for the present Writ Petition and accordingly, the Writ Petition stands disposed of. There shall be no order as to costs.

(S.V.G., C.J.,) (D.B.C., J.,)
23.04.2024
Index : Yes
Speaking order
Neutral Citation : Yes

Jer

 
To

1. The Secretary
   Union of India
   Ministry of Labour & Employment
   New Delhi.

2.The Secretary to Government
Ministry of Law
Union of India
New Delhi.

 
THE HON’BLE CHIEF JUSTICE
AND
D.BHARATHA CHAKRAVARTHY,J.

Jer

W.P.No.23527 of 2010

23.04.2024
1(1998) 2 SCC 688
2(2014) 10 Supreme Court Cases 1
3(2020) 6 SCC 1