P. R. GOKULAKRISHNAN, R. A. MEHTA, J. ( 1 ) THIS is a public interest Litigation by the appellants who are legal practitioners and they are supported by respondents Nos. 4 to 20 who are Labour Unions They are all practising before the Labour Courts in Gujarat They are challenging the transfers of Labour Court Judges by the Government According to them this power of transfer control and superintendence over the labour judiciary is vested in the High Court under Arts 235 and 227 of the Constitution and therefore these transfers of 11 Labour Judge by the impugned order dated 28/06/1984 Annexure A to the petition are without any authority or competence They have also challenged the constitutional validity of Sec. 9 of the Bombay Industrial Relations Act 1946 under which the State Government has the power to constitute Labour Courts and to appoint persons having qualifications specified in sub-sec. (2) to Sec. 9. The said Section reads as follows9 Labour Court - (1) the State Government shall by notification in the Official Gazette Constitute one or more Labour Courts having jurisdiction in such local areas as may be specified In such notification and shall appoint persons having the qualifications specified in sub-sec. (2) to Sec. 9. The said Section reads as follows9 Labour Court - (1) the State Government shall by notification in the Official Gazette Constitute one or more Labour Courts having jurisdiction in such local areas as may be specified In such notification and shall appoint persons having the qualifications specified in sub-sec. (2) to preside over such Courts (2) A person shall not be qualified for appointment as the Presiding Officer of a Labour Court unless (a) he has practiced as an advocate or a pleader for not less than three years in the High Court or any Court subordinate thereto or In any Labour Court Industrial Court or Tribunal established in the State under this Act or the Industrial Disputes Act 1547 (XIV of 1947) or any law corresponding to any such act for the time being In force in the State; or (b) he has regularly appeared as a member of a trade union for not less than seven years in proceedings before any such Labour Court Industrial Court or Tribunal and holds a degree in law of a University established by law in any part of India or (c) he holds a degree in law of a University established by law in any Dart of India and has held an office not lower in rank than that of a Registrar of a Labour Court or an Industrial Court or of an Assistant Commissioner of Labour under the State Government for not less than five yearsformerly in place of sub-sec. (2) there was a proviso which has beers repealed by Gujarat Act No. 22 of 1981 which was as under a provided that no person shall be so appointed unless he possessed the qualifications other than the qualification of the laid do in under Art 234 of the Constitution for being eligible to enter the judicial service in the State of Gujarat. ( 2 ) IT is submitted that the independence of Judiciary and separation of judicial powers from the executive Government are fundamental and basic in the scheme of the Constitution and Art 50 gives the Directive Principle of State Policy as under; the State shall take steps to separate the judicialy from the executive in the public service of the State in the appeal following additional ground has been permitted to be raised: the appellants submit that Sec. 9 of the Bombay Industrial Relations Act 1946 is so far as It empowers the State Government to appoint and transfer Labour Court Judges without following the provisions of Arts 233 234 235 and 236 of the Constitution of India and in violation thereof and without Intervention of the High Court is ultra vires the said articles and is therefore unconstitutional and of no effect. There are some other contentions also which we will mention later on ( 3 ) THE learned single Judge dismissed the petition holding that it is not a correct position that all the quasi judicial authorities and Tribunals are subject to the control of the High Court so much so that the High Court should exercise administrative control in respect of transfer and other matters as it does for the District Courts and other subordinate Courts. Other contentions were also negatived. In the Letters Patent Appeal it is contended that the transfer of these Labour Court Judges is violative of constitutional provisions and so also Sec. 9 which gives the power to appoint which would include the power to dismiss and it is submitted that the High Court alone has the administrative power to transfer those Judges as they are subordinate Courts and District Judges or Civil Judicial Service including the District Judges as contemplated by Art. 236 of the Constitution. It is also submitted that under Art. 227 of the Constitution also the High Court has power of superintendence and this power includes the power of transfer and for consultation in the matter of transfer of Labour Court Judges. Similar power of superintendence over the Labour Courts is conferred on Industrial Courts under Sec. 85 the Bombay Industrial Relations Act and the Industrial Court which consists of three members can take a decision about transfer and/or can control transfer and the President of the Industrial Court alone has no such power. Similar power of superintendence over the Labour Courts is conferred on Industrial Courts under Sec. 85 the Bombay Industrial Relations Act and the Industrial Court which consists of three members can take a decision about transfer and/or can control transfer and the President of the Industrial Court alone has no such power. ( 4 ) FROM the record it is clear that it is the President of Industrial Court Gujarat who had proposed these transfers of those Labour Court Judges by his letter dated 15/06/1984 addressed to the Secretary Government of Gujarat Labour and Employment Department and in accordance with and on the basis of these recommendations the Government of Gujarat in administrative exigencies and public interest has passed the impugned order transferring 11 Labour Court Judges in 1984. ( 5 ) IT may be mentioned that on this question the Division Benches of Allahabad High Court and Bombay High Court have taken contrary views. The view taken by the Bombay High Court is strongly relied by the appellants and the view of Allahabad High Court is strongly relied by the respondent-State. The Division Benches of these High Courts have confirmed the view taken by their respective learned single Judges. The view taken by the Bombay High Court is strongly relied by the appellants and the view of Allahabad High Court is strongly relied by the respondent-State. The Division Benches of these High Courts have confirmed the view taken by their respective learned single Judges. ( 6 ) THE contentions raised by the appellants are as follows (I) That the Labour Courts come under the judicial service as defined in Art 236tb) of the Constitution Article 236 (a) defines District Judge by way of an inclusive definition and clause (b) defines judicial service to mean District Judge and other civil judicial posts inferior to the post of District Judge Under Sec. 3 (17) of the General Clauses Act District Judge has been defined to mean Judge of a principal Civil Court of original jurisdiction According to the appellants Labour Courts and Industrial Courts have original civil jurisdiction and they are Courts and therefore covered by the definition in Art 236 of the Constitution and therefore they are under the control of the High Court under Art 235 of the Constitution and not under the control of the Government and therefore Sec. 9 is ultra wires Art 235 of the Constitution and the impugned orders of transfers by the Government are without any authority (II) The second contention is that the Labour Court also exercises criminal jurisdiction under the Bombay Industrial Relations Act and as such they are Magistrates under the Criminal Procedure Code read with Sec. 3 (32) of the General Clauses Act or Sec. 3 (28) of the Bombay General Clauses Act and therefore they are under the control of the High Court under Sec. 11 of the Criminal Procedure Code (III) The third contention of the appellants is that under Art 227 of the Constitution the Labour Courts and Industrial Courts are under the superintendence of the High Court both judicially and administratively and therefore the transfers could be only by administrative order of the High Court or in the alternative in consultation with the High Court an identical contention is also made in view of Sec. 85 of Bombay Industrial Relations Act which gives power of Superintendence over Labour Courts to the Industrial Courts and therefore it is submitted that the transfer would be the subject matter of administrative control or at least consultation with the Industrial Courts which consist of three members and not only its President (IV) The fourth contention is that the Labour Court Judges are appointed to a particular Court and post and they are not transferable and there cannot be an implied condition of transfer (V) The fifth contention is that the transfer suffers from arbitrariness and non-application of mind and without considering the relevant factors. ( 7 ) ON the other hand the learned Advocate General appearing for the State has contended that the Labour Courts are not administratively subordinate to the High Court and are not under the control of the High Court and they are not covered by the definition District Judge and Civil Judicial Service It is submitted that Labour Courts are not Courts in the sense in which the word has been used in Arts 235 and 236 of the Constitution relating to subordinate Courts He has submitted that the Constitution clearly indicate that there are Courts and there are Tribunals and other authorities dispensing justice in deciding disputes ant the Constitution makers have been very clear in their expression Whenever the Constitution makers wanted to include the Courts and Tribunals both they have done so expressly and in Chapter VI realting to subordinate Courts the Constitution has provided for control over the Courts only and that too Courts subordinates to the High Court and the Constitution has not made the Tribunals administratively subordinate and subject to the control of the High Court Therefore he has stated that while reading various decisions dealing with the concept of different types of Courts and Tribunals it would be important to bear in mind the contest in which those decisions were rendered He concedes that the word used is not conclusive and it is for the Court to find out whether the Labour Court is a Court or a Tribunal and whether it is administratively subordinate to and under the control of the High Court He also submit that all the powers - legislative executive and judicial - are located in the State and there is no strict and total separation of powers and it cannot be said that judicial power vests in the judiciary only just as all the legislative powers do not necessarily most in the Legislature even judiciary also has legislative and executive powers Therefore according to the learned Advocate General if there are Special Tribunals created with special jurisdiction they cannot be called Courts of civil jurisdiction which is plenary and residuary jurisdiction The learned Advocate General has also submitted that the definition of District Judge contained in the General Clauses Act read with Art 367 of the Constitution also is of no assistance to the appellants because the subject and context of Chapter VI clearly indicate the contrary intention He has also submitted that the power of the High Court under Art 227 of the Constitution or of the Industrial Court under Sec. 85 of the Bombay Industrial Relations Act is of superintendence and not of control and there is no administrative subordination There is only judicial superintendence over the Tribunals in the State and there is lot of difference between the administrative superintendence or judicial superintendence It is also submitted that the superintendence is over Labour Courts not over the Government and the sections of the Government of appointing ant transferring Labour Court Judges He has also submitted that transfer in an Incident of service and power to appoint includes incident power of control supervision and transfer especially then all these Labour Court Judges belong to the same cadre those are necessarily transferable inter se. As regards the allegations of mala fide it is to be noticed that the allegations made against the President of Industrial Court have been withdrawn. Therefore it is submitted that on the recommendations of the President of the Industrial Court who is not alleged to have acted mala fide the Government which has accepted those recommendations cannot be said to have acted mala fide. He has further submitted that is the proposal for transfers by President of the Industrial Court there are reason given in tie proposal itself and therefor it is sot correct to say that the transfers are arbitrary or mala fide. He has further submitted that the transfers which have been effected on administrative grounds or administrative exigency in public interest cannot be a subject matter of scrutiny by the Courts under Art 226 of the Constitution. ( 8 ) MR. Shailesh Parikh learned Advocate for the respondents Nos. 4 to 20 has adopted the arguments advanced by the appellants Mr. J. M. Patel learned Advocate appearing for respondent No 21 has supported the arguments of learned Advocate General ( 9 ) THE whole question is whether the Industrial Court can be considered as a District Judge under Art 236 (a) of the Constitution and whether the Labour Courts and Industrial Courts are included within the expression judicial service under Art 236 (b) of the Constitution There is no dispute that the District and Sessions Judge as designated and understood in ordinary parlance sad strict sense is District Judge and a Court subordinate to the High Court and is subject to the control including transfer by the High Court. The question is whether Industrial Courts and Labour Court are also included therein The Relevant Articles of the Constitution are contained in part VI (the States) Chapter V (the High Court in the States) and Chapter VI (Subordinate Courts) Articles 233 to 231 in Chapter VI relating to subordinate Courts read as follows233 Appointment of District Judges :- (1) Appointments of persons to be and the posting and promotion of District Judges in any State shall be made by the Governor of the State In consultation with the High Court exercising jurisdiction in relation to such State (2) A person not already In the service of the Union or of the State shall only be eligible to be appointed a District Judge If he bad been for not less than seven years an Advocate or a Pleader and is recommended by the High Court for appointment 23 Validation of appointments of and judgment etc. delivered by certain District Judges. 234 Recruitment of persons other than District Judges to the judicial service :- Appointments of persons other than District lodges to the judicial service or a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court Exercising jurisdiction in relation to the such State. 235 Control over subordinate Court :- The control over District Courts and Courts subordinate thereto including the posting the promotion or and the grant of leave to persons belonging to the judicial service of a State and holding any post Interior to the post of District Judge shall be vested In the High Court but noting In this article shall be cornered as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than In accordance with the conditions of his service prescribed under such law. 236 Interpratation : - In this Chapter (a) the expression District Judge of a City Civil Court Additional District Judge Joint District Judge Assistant District Judge Chief Judge of a Small Cause Court Chief Presidency Magistrate Additional Chief Presidency Magistrate Sessions Judge Additional Sessions Judge and Assistant Sessions Judge; (b) the expression Judge service means a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. 237 Application of the provisions of this Chapter to certain class or classes of Magistrates :- 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 Magistrate in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and notifications as may be specified in the notificationarticle 367 (1) reads as follows : unless the context otherwise requires the General General Clauses Act 1897 shall subject to any adaptations and modifications that may be made therein under Art 372 apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. ( 10 ) THE General Clauses Act 1897 defines District Judge and Magistrate in Secs. 3 (17) and 3 (32) as follows3 In this Act and In nil Central Acts and Regulations made after the commencement of this Act unless there is anything repugnant in the subject or context (17) District Judge shall mean the Judge of a principal Civil Court of original Jurisdiction but shall not include a High Court in the exercise of its ordinary extraordinary original civil jurisdiction. (32) Magistrate shall Include every person exercising all or any of the power of a Magistrate under the Code of Criminal Procedure for the time being In force. (32) Magistrate shall Include every person exercising all or any of the power of a Magistrate under the Code of Criminal Procedure for the time being In force. ( 11 ) THE contention of the appellants is that Industrial Court is a District Judge because it discharges original civil jurisdiction and the Labour Courts are inferior to Industrial Court Both of them are constituted under the Bombay Industrial Relations Act ( 12 ) THE contention of the respondents is that having regard to the subject and content of the Constitution and the scheme of Chapter VI relating to subordinate Courts Labour Courts and Industrial Courts are not principal Civil Courts of original jurisdiction but they are Tribunals of special jurisdiction constituted under the new industrial jurisprudence creating new rights and new remedies for settlement of industrial disputes (much different from civil disputes) and regulation of industrial relations between employers and employees and maintaining industrial peace. ( 13 ) BOMBAY Industrial Relations Act 1946 has been enacted to regulate the relations of employers and employees and to make provision for settlement of industrial disputes. Industrial Dispute has been defined in Sec. 3 (17) and Industrial matter in Sec. 3 (18) Industrial Court in Sec. 3 (16) and Labour Court in Sec. 3 (21) and they read as follows:3 Industrial dispute means any dispute or Difference between an employer and employee or between employers and employees or between employees and employees and which is connected with any Industrial matter: 3 industrial matter means any matter relating to employment work wages hours of work privileges rights or duties of employers or employees or the mode terms and conditions of employment and includes (a) all matters pertaining to the relationship between employers and employees or to the dismissal or non-employment of any person; (b) all matters pertaining to the demarcation of functions of any employees or classes of employees; (c) all matters pertaining to any right or claim under or in respect of or concerning a registered agreement or a submission settlement or award made under this Act; (d) all questions of what is fair and right In relation to any Industrial matter having regard to the interest of the person immediately concerned and or the community as a whole;3 Industrial Court means the Court of Industrial Arbitration constituted under Sec. 10; 3 Labour Court means a Labour Court constituted under Sec. 9. ( 14 ) THE industrial dispute in essentially a matter of new industrial jurisprudence which has come into existence as a result or collective bargaining and collective disputes. Under the industrial arbitration contemplated by Industrial Courts and Labour Courts the Courts are empowered to create new rights not existing in any contract or any law and resolve demands of employees against employers with a view to achieving industrial peace and maintaining good industrial relations. As defined in Sec. 3 (16) Industrial Court is a Court of industrial arbitration. Section 10 reads as follows:10 The State Government shall constitute Court of Industrial Arbitration. (2): The Industrial Court shall consist of three or more members one of whom shall be its President (3): Every member of the Industrial Court shall be a person who is not connected with the industrial dispute referred to such Court or with any industry directly affected by such dispute. Provided that no person shall be deemed to be connected with the industrial dispute or with the Industry be person only of the fact that he is a shareholder of an incorporated company which is connected with or likely to be affected by such industrial dispute; that in such of case he shall disclose to the State Government the nature and extent of the shares held by him in such company (4) : Every member of the industrial court shall to a person who is or has been a Judge of a High Court or is eligible for being appointed a Judge of such Court (or has presided over a Labour Court for not less than ten years ). provided that one member may be person not so eligible if in the opinion state Government he possesses expert knowledge of Industrial matters. provided further that a member who before his appointment as such members. has presided over a Labour Court for not less than ten years shall notwithstanding anything contained in Sec. 92 be eligible for appointment on a Beach of the Industrial Court consisting only of one member and Sec. 92 shall have effect accordingly. provided further that a member who before his appointment as such members. has presided over a Labour Court for not less than ten years shall notwithstanding anything contained in Sec. 92 be eligible for appointment on a Beach of the Industrial Court consisting only of one member and Sec. 92 shall have effect accordingly. ( 15 ) IT is true that Labour Courts and Industrial Courts also decide some disputes which are of civil nature and which could have gone into Civil Courts in exorcise of its original civil jurisdiction But there are largo many other cases which could not have gone to Civil Court in exercise of original civil jurisdiction In light of the above nature and scheme of the Industrial Courts and the Labour Courts let us now examine and peruse the decisions relied by both the sides ( 16 ) MR. M. C. Bhatt to substantiate his contentions regarding the Industrial Court and Labour Court discharging civil original jurisdiction cited the decision in the case of SRIRAMRAO V. SURYANARAYAN MURTI REPORTED IN AIR 1954 Mad 340 In this decision the learned single Judge of Madras High Court observed court which decide disputed rights between subject or between a subject and the state would be civil courts as opposed to Criminal Courts where the State vindicates wrongs committed against the public Courts constituted for deciding on purely Civil questions between persons seeking their civil rights must be considered to be Civil Courts notwithstanding that they are created by a special statue and are mentioned in that statue as district from Civil courts the true import of such a distinction is that while special Court have jurisdiction over a limited class of suit specified in the statute the jurisdiction of the. In Paragraph is not limited to any class of suits. In Paragraph is not limited to any class of suits. The aforesaid observations were made in the context of execution of an award passed by Registrar of Co-operative Societies and the question was about the moaning of word Civil Court within the meaning of that expression in Sec. 25 of the Debt Conciliation Act In paragraph 7 the learned Judge observed that: that there is a real distinction between a Tribunal and a Court cannot as disputed though It any often be fine and sometimes difficult to define after this decision in 1954 the Supreme Court had occasions to decide when a Tribunal is not a Court to which we will refer hereafter ( 17 ) IN as much as the Labour Courts and Industrial Courts are deciding the disputes of civil rights Mr. M. C. Bhatt states that they come under the category of Civil Court exercising ordinary original civil jurisdiction To support this contention Mr. M. C. Bhatt also cited the decision in the case or NARAYAN V. SHANKAR REPORTED IN AIR 1966 Mys 5 wherein the learned single Judge of Mysore High Court observed:the expression Civil Court has not been defined in any Act of the Code The Code of Civil Procedure in its preamble indicates that it is on Act to consolidate and amend the laws relating to the Courts of Civil Judicature in other words the Courts which have jurisdiction to deal with civil disputes and rights pertaining to property and person. According to Mr. M. C. Bhatt in as much as the Labour Courts and Industrial Courts are dealing with the civil rights they will come under the category of Courts which are discharging civil original jurisdiction and as such will be within the definition of Art. 236 of the Constitution. ( 18 ) THE aforesaid case had arisen under the Bombay Mamlatdar Courts Act and there Sec. 23 (3) made express provision to the affect that where the Collector Assistant Collector Deputy Collector or Assistant Commissioner takes any proceeding under the Act he shall be deemed to be a Court under the Act. ( 18 ) THE aforesaid case had arisen under the Bombay Mamlatdar Courts Act and there Sec. 23 (3) made express provision to the affect that where the Collector Assistant Collector Deputy Collector or Assistant Commissioner takes any proceeding under the Act he shall be deemed to be a Court under the Act. For coming to the conclusion that the deemed Court is a Civil Court the Mysore High Court considered Sec. 5 of the Bombay Mamlatdars Courts Act which gave power to adjudicate disputes with regard to the enjoyment and posses sion of land including rights to receive surface water grazing cattle growing trees etc. and the proviso to that section expressly empowered the Mamlatdar to refuse to adjudicate any of the claims brought before him under the Act for reasons to be recorded in writing if it appeared to him that such case can more suitably be dealt with by Civil Court and therefore the learned single Judge of Mysore High Court came to the conclusion that the jurisdiction of the Mamlatdar Judicial with that of the Civil Court. Mysore High Court held that the fact that such Court was presided by a revenue officer was not relevant nor was it relevant that he was appointed by the Government and according to it what is material is the power and functions entrusted to such Presiding Officer. It is to be noted that these officers are neither exclusively appointed for judicial post nor intended to fill exclusively civil judicial post. Therefore that decision is of no use in interpret ing Art. 236 of the Constitution. ( 19 ) THE learned Counsel for the appellants also followed on the judgment in the case of PREMIER AUTOMOBILES V. KAMLAKER SHANTARAM WADKE and ORS. AIR 1975 SC 2238 . In that case the Supreme Court considered the principles applicable to the Civil Court in relation to the industrial disputes. In paragraph 10 the famous and oft quoted words in DOE V. BRIDGES (1831) 1 B and AD. 847 were again quoted. AIR 1975 SC 2238 . In that case the Supreme Court considered the principles applicable to the Civil Court in relation to the industrial disputes. In paragraph 10 the famous and oft quoted words in DOE V. BRIDGES (1831) 1 B and AD. 847 were again quoted. They road as follows:where an Act creates an obligation and enforces the performance in a specified manner we take It to be a General rule that performance cannot be enforced In any other manner the Supreme Court also referred to classic enunciation of law and classification of cases in three classes done by Willes J. in the ease of WOLVERHAMPTON NEW MOTORWORKS CO. V. HAWKESFORD which reads as follows : there are three classes of cases in which a liability may be established by statute. There Is that class where there is a liability existing at common law and which is only re-enacted by the statute with a special form of remedy; there unless the statute contains words necessarily excluding the common law remedy the plaintiff leas his election of proceeding either under the statute or at common law Then there is a second class which consists of those cases In which a statute has created a liability but has given no special remedy for it there the party may adopt an action of debt or other remedy of common law to enforce it. The third class is where the statute creates a liability not existing at common law and gives also a particular remedy for enforcing it With respect to that class it has always been held that the party must adopt the form of remedy given by the statute. ( 20 ) THE Supreme Court considered the scheme of Industrial Disputes Act like the B. I. R. Act and observed as follows in paragraph 9 it would thus be seen that through the intervention of the appropriate Government of course not directly a very extensive machinery has been provided for settlement and adjudication of Industrial disputes. But since an individual aggrieved cannot approach the Tribunal or the Labour Court directly for the redress of his grievance without the intervention of the Government it is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of the Civil Court for trial of Industrial disputes. But since an individual aggrieved cannot approach the Tribunal or the Labour Court directly for the redress of his grievance without the intervention of the Government it is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of the Civil Court for trial of Industrial disputes. If the dispute Is not an industrial dispute within the meaning of Sec. 2 (k) or within the meaning of Sec. 2a of the Act it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the Industrial dispute is for the purpose of enforcing any right obligation or liability under the general law or the common law and not a right obligation or liability created under the Act then alternative forums are there giving an election to the suitor to choose his remedy of either moving the Machinery under the Act or to approach the Civil Court. It is plain that he cant have both. He has to choose the one or the other. But we chilly presently show that the Civil Court will have no jurisdiction to try and adjudicate upon an Industrial dispute if it concerned informant of contain right or liability created only under the Act. In the event Civil Court will have no jurisdiction even to grant a decree of injunction to prevent the threat red Injury on account of the alleged breach of contract if the contract is one which is recognised by and enforceable under the Act alone. . ( 21 ) THE Supreme Court gave its summary and conclusions in paragraphs 23 and 24 as follows:to sum up the principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute may be stated thus: (1) If the dispute is not an industrial dispute nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court. (2) It the dispute 16 an industrial dispute arising out of a right or liability under the General or common law and not Under the Act the jurisdiction of the Civil Court in alternative leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in particular remedy. (2) It the dispute 16 an industrial dispute arising out of a right or liability under the General or common law and not Under the Act the jurisdiction of the Civil Court in alternative leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in particular remedy. (3) 15 she Industrial dispute relates to the enforcement or a right or an obligation created under the Act then the only remedy available to the suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement 16 either Sec. 33c or the raising of an industrial dispute as the case may be. We may however in rela relation to Principle 2 stated above hasten to add that there will hardly be a dispute which will be an be an Industrial dispute within the meaning of Sec. 2 (k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency for example may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Sec. 2a of the Act will be as industrial Dispute even though it may otherwise be an individual dispute. Civil Courts therefore will have hardly an occasion of deal with the type of eases falling under principle 2. Cases of Industrial disputes by and large almost invariably are bond to be covered by principal 3 stated above. It is thus clear that by and large dominantly and in pith and substance Industrial Courts and Labour Courts are special Courts exercising industrial of labour jurisdiction and not ordinary civil jurisdiction It is jurisdiction of industrial arbitration ( 22 ) IN support of his contention Mr. It is thus clear that by and large dominantly and in pith and substance Industrial Courts and Labour Courts are special Courts exercising industrial of labour jurisdiction and not ordinary civil jurisdiction It is jurisdiction of industrial arbitration ( 22 ) IN support of his contention Mr. M. C. Bhatt very strongly relied on the decision in the case of STATE OF MAHARASHTRA V. LABOUR LAW PRACTITIONERS ASSOCIATION REPORTED IN 1987 (2) LABOUR and INDUSTRIAL CASES 1061 This is a case decided by a Division Bench of the Bombay High Court wherein the Bombay High Court had occasion to consider the power control both administrative and judicial of the Labour Court vis-a vis the State and judiciary The discussion in this Division Bench mainly concentrated upon the judicial functions performed by the Labour Courts and the Division Bench has come to the conclusion that a Labour Court which has all the trappings of the Civil Court is definitely a Court of ordinary Civil jurisdiction It also held that these Courts shared the exercise of the judicial power of the State The Bench has also observed. Tested upon the touch-stone of these decisions the Labour Court Is invested with the judicial power of the State It derives its authority from statutes. It is ordinarily permanent. Its numbers ordinarily fixed. It adjudicates upon disputes between parties and delivers binding judgments. It has all the trappings of a Court. It does not implement administrative policy or determine controversies arising out of administrative law. The Bench referred the General Clauses Act which states that the District Judge is a Judge of a Principal Civil Court of original jurisdiction Considering this definition in the General Clauses Act the Bench adverted to the definition of District Judge in Art 236 (a) and observed the definition of District Judge in Act. 236 (a) is an inclusive one and covets a large field. It expressly includes a Judge of a City Civil Court an Additional District Judge a point District Judge and Assistant District Judge the Chief Judge of Small Cause Court. the Chief Presidency Magistrate a Sessions Judge an Additional Se sions Judge. It includes every conceivable functionary of similar status in what was ordinarily regarded as the hierarchy of Courts but is still only inclusive nature. the Chief Presidency Magistrate a Sessions Judge an Additional Se sions Judge. It includes every conceivable functionary of similar status in what was ordinarily regarded as the hierarchy of Courts but is still only inclusive nature. This suggests that the framers of the Constitution contemplated the inclusion within the definition of District Judge of functionaries outside what was ordinarily regarded as the hierarchy of the Courts. Continuing further the Bench hold :the Labour Court has teen held in the various decisions aforementioned to be a Court. The Labour Court adjudicates upon disputes which are essentially of a civil nature. The Labour Courts functions there held as far back as 1968 to quasi-civil in nature This must apply to the industrial Court The industrial Court has original jurisdiction under the statute. It is also a Principal Court exercise supervision over the Labour Court (Sec. 85 BIR Act) and hears appeals from decisions of the Labour court (Sec. 84 BIR Act) accordingly a member of the Industrial Court may well be said to be a District Judge. The Industrial Court and the Labour Court Constitute a hierarchy or system of Courts. the latter being inferior to the former the posts of Labour Court Judges would being thus inferior to the post of District wage i. e. the Industrial Court Judge from part of the judicial service as defined in Art. 236 (b ). With the abovesaid observations the Bench has further held: turning than to Art. 234 the appointment of persons to the judicial service of the State must be made in accordance with the rule in that behalf after consultation with the State Public Service Commission and with the State High Court The appointments of judges to the Labour Court must therefore be made under the provisions of Art. 234 of the Constitution. As a corollary to the abovesaid discussion the Bench has categorically held: the Constitutional requirement of an Independent judiciary must apply to all institutions that administer justice. It requires the application of Art 234 to the appointment of Labour Court judges ( 23 ) THIS judgment directly covered the issue in favour of the appellants. However it is strongly contested by other side and It is tried to be shown that it does not decide take issue correctly. It requires the application of Art 234 to the appointment of Labour Court judges ( 23 ) THIS judgment directly covered the issue in favour of the appellants. However it is strongly contested by other side and It is tried to be shown that it does not decide take issue correctly. 14 ( 24 ) THE Division Beach of the Bombay High Court referred to the judgments of the Supreme Court in Harinager Sugar Mills AIR 1961 SC 1669 and Chandramohans case AIR 1966 SC 1987 and in para 16 observed that the Labour Court substantially meets the requirement set out by Hidayatullah J. to be treated as a part of the ordinary hierarchy of Courts. As seen from para 20 of the judgment of Bombay High Court observations of Hidayatullah J. were in the context of Art. 227 In pars 21 the Bombay High Court relied on the Full Bench judgment of Gujarat High Court in the case of SHAIKH MOHMED HUSSAINBHAI V. MANAGER CHANDRAMOHAN CINEMA 1986 LIC 1749 where Labour Courts and Industrial Tribunals were hold to be Courts within the meaning of Contempt of Courts Act and on the touch-stone of these decisions namely (Tribunals subject to Art. 227 and Courts within the meaning of Contempt of Courts Act) the Bombay High Court held that the Labour Court is invested with judicial powers of the State. These observations in para 22 are mainly in the language of para 31 of Harinagar Sugar Mills case (supra ). However paras 32 and 33 are not given any effect and meaning wherein Hidayatullah J. expressly stated that these Tribunals having the authority of law pronounce upon valuable rights and act in judicial manner ant they are not part of ordinary Courts of civil Judicature and they are not Courts. when the Constitution speaks of Courts In Arts. 146 227 or 228 or In Arts. 233 to 237 or tn the Lists it contemplates Courts of civil judicature but on tribunal other than such Courts. This is the reason for using both the expressions in Arts. 136 and 227. Hidayatullah J. further observed that certain special matters go before the tribunals and the residue goes before the ordinary Court of civil Judicature. This express reference to Arts. This is the reason for using both the expressions in Arts. 136 and 227. Hidayatullah J. further observed that certain special matters go before the tribunals and the residue goes before the ordinary Court of civil Judicature. This express reference to Arts. 233 to 237 and holding that for the purpose of those Articles Tribunals are not Courts makes a world of difference and it is not possible to agree with the reasonings and conclusions of the Bombay High Court. ( 25 ) IT appears that Bombay High Court was impressed (we are also impressed) and carried any by the laudable object behind separation of judiciary from the executive. In paras 27 to 30 Bombay High Court has referred to the tendency of by-passing Public Service Commission and the High Court in making appointments to poets which are purely judicial and this tendency does not enhance the independence of judiciary in this case labour judiciary. We do share that laudable fooling. However it is not possible to allow our reasoning and conclusion to be influenced by it. ( 26 ) THE Bombay High Court has lifted the definition of District Judge in the General Clauses Act and applied the same to the labour judiciary. In our view when the Constitution had given its own definition of District Judge in Art. 236 (a) more particularly in view of the Chapter holding Subordinate Courts it is not possible to apply the definition in the General Clauses Act because the context requires that the District Judge as defined in Art. 236 (a) should be construed in the light of inclusive definition and only such Judges and Courts will be brought into that definition which answer that description or at the most such other categories which are of the same colour in accordance with the well known canon of construction and interpretation of statutes ejusdem generis. Even though the constitution makers included Additional Joint and Assistant District Judges Sessions Judge and Addl. Sessions Judge in the definition of District Judges and even though they were ware of the existing labour judiciary they did not extend that definition so as to include labour judiciary land reform judiciary or revenue judiciary within its scope. These aspects have not been considered by the Bombay High Court. Sessions Judge in the definition of District Judges and even though they were ware of the existing labour judiciary they did not extend that definition so as to include labour judiciary land reform judiciary or revenue judiciary within its scope. These aspects have not been considered by the Bombay High Court. Bombay High Court has taken the view that the definition in the Constitution in inclusive and it includes every conceivable functionary which adjudicates open disputes which are of civil nature. With respect we are unable to agree with the same. Even though the Labour Court adjudicates upon disputes between employers and employees they are the disputes of special nature as held in Premier Automobiles case (supra ). In such labour dispute there would hardly be any occasion for a litigant to go to the Civil Court. It is now jurisprudence and even though it was known to the Constitution takers at the time of framing the Constitution not only they did not include them in the definition they did not most the judiciary with the monopoly of judicial power. Our respectful disagree. ment from the view of the Bombay High Court will be further elaborated hereafter referring to sa of the Supreme Court Judgments; ( 27 ) THE learned Advocate General has relied on several judgments 7 submitted that each judgment is required to be seen in the context in which the Court was dealing with the question because in all those cases the Court was concerned with the question as to whether Contempt of Courts Act is applicable or whether the Supreme Court had power to grant special leave against the judgment of a Tribunal or whether the High Court had power of judicial superintendence over the Tribunal under Art. 217 of the Constitution and the observations made in those judgments have to be read in the light of those situations. ( 28 ) IN the case of BHARAT BANK V. EMPLOYEES OF BHARAT BANK REPORTED IN AIR 1950 SC 188 the Supreme Court considered its power under Art. 136 in relation to an appeal filed against an order of Industrial Tribunal. It observed that it is implied that before an appeal can lie to Supreme Court from a tribunal the tribunal must perform some kind of judicial function and partake to some extent of the character of a Court. It observed that it is implied that before an appeal can lie to Supreme Court from a tribunal the tribunal must perform some kind of judicial function and partake to some extent of the character of a Court. Kania C. J in that decision observed:in my opinion the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions Although it is not a Court. . . . . . . . Having considered all the Provisions of the Act It seems to me clear that the Tribunal is discharging functions very near those of a Court although it is not a Court in the technical sense of the word in this judgment Mahajan J after referring to various provisions of the Industrial Disputes Act came to the conclusion: in my opinion therefore the Industrial Tribunal has all the necessary attributes of a Court of justice it has no other function except that of adjudicating on a dispute. It is no doubt true that by reason of the nature of the dispute that they have to adjudicate the law gives them wider powers than are possessed by ordinary Courts of law but powers of such a nature do not effect the question that they are exercising judicial power. States like the Relief of Indebtedness Act or the Encumbered Estates Act have conferred powers on Courts which are not ordinarily known to law and which affect contractual rights that circumstance does not make them anything else but Tribunals exercising judicial power of the state Though in a degree different from the ordinary Courts and to an extent which is also different from that enjoyed by an ordinary Court of law they may rightly be described as quasi-judicial bodies because they are out of the hierarchy of the ordinary judicial system but that circumstance cannot affect the question of their being within the ambit of Art 136 b. K. Mukherjee J. in that decision took up for consideration two questions. The first is whether the award or decision of an Industrial Tribunal constituted under the Industrial Disputes Act is a judicial decision in the proper sense of the expression or in it the pronounce ment of an administrative or quasi-judicial body which may exercise some of the functions of a Court of law but is really not so. The first is whether the award or decision of an Industrial Tribunal constituted under the Industrial Disputes Act is a judicial decision in the proper sense of the expression or in it the pronounce ment of an administrative or quasi-judicial body which may exercise some of the functions of a Court of law but is really not so. The other question is as to whether the language of Art. 136 will include an adjudication or award of an Industrial Tribunal. After discussing various decisions and the provisions of the Act Mukherjee J held: our conclusion therefore is that an Industrial Tribunal formed under the Industrial Disputes Act is not a judicial Tribunal and its determination is not a judicial determination In the proper sense of these expressions. After discussing various decisions and the provisions of the Act Mukherjee J held: our conclusion therefore is that an Industrial Tribunal formed under the Industrial Disputes Act is not a judicial Tribunal and its determination is not a judicial determination In the proper sense of these expressions. From this decision it is clear that the Industrial Tribunal which functions under the Industrial Dispute is discharging function very near those of a Court although it is not a Court in the technical sense of the word and is out of the hierarchy of the ordinary judicial system ( 29 ) IN the case of HARINAGAR SUGAR MILLS V. SHYAM SUNDAR AIR 1961 SC 1669 the Supreme Court had occasion to consider the order passed by the Central Government under Sec. 111 of the Companies Act Per majority it was held that the Control Government exercising appellate powers under Sec. 111 of the Companies Act 1956 is Tribunal exercising judicial functions and is subject to the appellate jurisdiction of the Supreme Court under Art 136 of the Constitution Even though Hidayatullah J one of the Judges in that Bench quashed the order of the Central Government and allowed the appeal the majority of the Judges quashed the orders of the Control Government and directed the appeals to be rendered and disposed of according to law by the Central Government As regard the principles regarding the judicial power of the State being exercised both by the State by appointment of Tribunals and by the judiciary there is no difference of opinion in the Bench In this decision the Supreme Court hold as follows all Tribunal are not Courts though all Courts are Tribunal The word Courts is used to designate those Tribunals which are set up in an organised State for the administration of justice By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish wrong. Whenever there is an Infringement of a right or an injury the Courts are there to restore the vinculum juris which is disturbed. Proceeding further the Supreme Court observed : (31) When rights are Infringed or invaded the aggrieved party can go and commence a quarries before the ordinary Civil Courts. Whenever there is an Infringement of a right or an injury the Courts are there to restore the vinculum juris which is disturbed. Proceeding further the Supreme Court observed : (31) When rights are Infringed or invaded the aggrieved party can go and commence a quarries before the ordinary Civil Courts. These Courts which are instrumentalities of Government are Invested with the Judicial power of the State and their authority is derived from the Constitution or some Act of legislature; constituting them Their number is ordinarily fixed and they are ordinarily permanent and can try any suit or cause within their jurisdiction. Their numbers may be increased or decreased but then are almost always permanent and go under the compendious name of Courts of Civil judicature. There can thus be no doubt that the Central Government does not come within this class (3;) With the growth of civilisation and the problems of modern life a large number of administrative Tribunal have come into existence. These Tribunals have the authority of law to Pronounce upon valuable right they act in a judicial manner and even on evidence on oath but they are not part of the ordinary Court 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 Court. When the Constitution speaks of Courts in Arts 136 227 or 228 or its Arts. 213 to 237 or in the Lists It contemplates Court of Civil Judicature but not Tribunals other than such Courts. This is the reason if or using both the expressions in Arts. 136 and 227. By Court is meant Courts of Civil and by Judicature and by Tribunals those bodies men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State and is aptly called the judicial power of the State. In the exercise of this power a clear division is thus noticeable Broadly speaking certain special matters go before Tribunal; and the residue goes before the ordinary Courts of Civil Judicature. Their procedures may differ but the function are not essentially different. In the exercise of this power a clear division is thus noticeable Broadly speaking certain special matters go before Tribunal; and the residue goes before the ordinary Courts of Civil Judicature. Their procedures may differ but the function are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that Courts have an air of detachment. But this is more a matter of age and tradition and is not of the essence. Many Tribunals in recent years have acquitted themselves so well and with such detachment as to make this test insufficient. The Supreme Court has also observed: in my opinion a Court in the strict sense is a Tribunal which is a part of the ordinary hierarchy of Court of Civil Judicature maintained by the State under its. constitution to exercise the judicial power of the State. These Courts perform all the judicial function of the State except those that are excluded by law from their jurisdiction. The word judicial be it noted is itself capable of two meanings. They were admirably stated by LOPES E. J. IN ROYAL AQUARIUM AND SUMMER AND WINTER GARDEN SOCIETY V. PARKINSON (1892)1 QB (452) in these words : the word judicial has two meaning. It may refer to the discharge of duties exercisable by a Judge or by justices in Court or to administrative duties which need not be performed in Court but in respect of which it is necessary to bring to bear a judicial mind-that is a mind to determine what is fair and just in respect of the matter under consideration. That an offer is required to decide matters before him judicially in the second sense does not make him a Court or even a Tribunal because that only established that he is following a standard of conduct and is free from bias or interest. ( 30 ) IN the case of ENGINEERING MAZDOOR SABHA V. HIND CYCLES LTD. That an offer is required to decide matters before him judicially in the second sense does not make him a Court or even a Tribunal because that only established that he is following a standard of conduct and is free from bias or interest. ( 30 ) IN the case of ENGINEERING MAZDOOR SABHA V. HIND CYCLES LTD. REPORTED IN AIR 1963 SC 874 the Supreme Court agreed with the proposition enunciated in AIR 1950 SC 188 to the effect that the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions and so though the Tribunal is not a Court it is nevertheless a Tribunal for the purposes of Art 136 ( 31 ) IN the case of A C COMPANIES V. P. R. SHARMA REPORTED IN AIR 1965 SC 1595 the Supreme Court approved the principles laid down in AIR 1950 SC 188 and other decisions which is to the effect that the expression Tribunal used in Art 136 does not mean the same thing as Court but includes within its ambit all adjudicating bodies provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions In this decision it has been clearly brought out that the said inherent judicial power can either be with the Court established to discharge the judicial functions or with an authority or a body which will be called as Tribunal. In India the Supreme Court recognised that the judicial power of the State can be with a Tribunal or with the Court. Elaborating the vesting of Judicial power of the State both in the Court and Tribunal Bachawat J. in this Decision has stated; in our Country the State (using that expression in the comprehensive sense of the Union and its component States) has inherent judicial powers or functions and the Courts and other authorities vested by State with judicial function are regarded as delegates of the State judicial power. Unlike Australia in our country the judicial power of the State may be vested not only in Court but also in other authorities. The Court alone have no monopoly of this judicial power. An authority other than a Court vested with the judicial power of the State in this sense is regarded as a Tribunal within Art. 136. Unlike Australia in our country the judicial power of the State may be vested not only in Court but also in other authorities. The Court alone have no monopoly of this judicial power. An authority other than a Court vested with the judicial power of the State in this sense is regarded as a Tribunal within Art. 136. In this decision the Supreme Court also held that in order to be a Tribunal it is essential that the power of adjudication must be derived from a statute or a statutory rule. Thus it is clear from this decision that the Tribunal exercising judicial powers specifically assigned to it by a statute or statutory rule no doubt discharges judicial function of the State but it will not strictly come under the definition of the Court though broadly it may be called Court. ( 32 ) IN the case of CHANDRA MOHAN V. STATE OF U. P. AIR 1966 SC 1987 the Supreme Court had to consider the power of Governor to make appointments in consultation with the High Court. Uttar Pradesh Higher Judicial Service Rules were declared constitutionally void ar contravening the constitutional mandate of Art. 233 (1) and (2) because under the rules the constitutional with High Court was found to be an empty formality. In that decision the Supreme Court observed ar under:the Indian Constitution though it does not accept the strict doctrine of separation of powers provides for an independent Judiciary in the State it Constitutes a High Court for each State prescribes the Institutional condition of services of the Judges thereof confers extensive jurisdiction on it to Issue writs to keep all Tribunals Including in appropriate cases the Governments within bounds anal gives to it the power of superintendence over all Courts end Tribunals in the territory over which it has jurisdiction But the makers of the Constitution also realised that it as she Subordinate Judiciary in India who ate brought most closely into contact with the peerless and it to no less important perhaps Indeed even more important that their independence should be placed beyond question in the case of the superior Judges. Presumably to secure the independence of the judiciary from the executive the Constitution introduced a group of Articles in Chapter VI of part VI under the heading subordinate Court. Presumably to secure the independence of the judiciary from the executive the Constitution introduced a group of Articles in Chapter VI of part VI under the heading subordinate Court. But at the time Constitution was made in most of the States the magistracy was under the direct control of the executive. Indeed it is common knowledge that in pre-independence India there was a strong agitation that the judiciary should be separated from the executive and that the agitation was based upon the assumption that unless they Were separated the independence of that judicial at the lower levels would be a mockery. So Art. 50 of the Direction Principles of State Policy states that the State shall take steps to separate the judiciary at the executive in the public services of the States. Simply stated it means that there shall be Et separate judicial service free from the executive control. The Supreme Court further held: the setting up viz. the chapter dealing with subordinate Courts to which the expression the service appears indicates that the service mentioned therein is the service pertaining to Courts. Simply stated it means that there shall be Et separate judicial service free from the executive control. The Supreme Court further held: the setting up viz. the chapter dealing with subordinate Courts to which the expression the service appears indicates that the service mentioned therein is the service pertaining to Courts. that apart Art. 286 (2) defines the expression judicial service to mean a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge If this definition instead of appealing in Art 236 is placed as a class before Art 233 (2) there cannot be any dispute that the service in Art. 233 can only mean the judicial service the circumstance that the definition of judicial service finds a place in a subsequent Article does not necessarily lead to a contrary conclusion The fact that in Art 233 (2) the expression the service Is used whereas in Arts 234 and 235 expression judicial service is found is not decisive of the question whether the expression the service in Art 733 (2) must be something other than the judicial service for the entire chapter is dealing with judicial service 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 Officer Starting from lowest and ending with District Judges the expressions exclusively and intended emphasise the fact that the judicial service consists only of persons intended to fill up the post of District Judges and other civil judicial posts and that Is the exclusive service of judicial officers Having define a judicial service in exclusive terms having provided for appointments to that service are having entrusted the control of the said service to the care of the High Court the makers of the Constitution. would not have conferred a blanket power on the Governor to appoint ans person from any service as a District Judge. ( 33 ) IN the case of JUGAL KISHORE V. SITAMARNI CENTRAL CO-OP. BANK REPORTED IN AIR 1967 SC 1494 the Supreme Court had an occasion to consider the applicability of the Contempt of Courts Act in respect of the functions discharged by the Assistant Registrar under Sec. 48 read with Sec. 6 (2) of the Bihar and Orissa Co-operative Societies Act. BANK REPORTED IN AIR 1967 SC 1494 the Supreme Court had an occasion to consider the applicability of the Contempt of Courts Act in respect of the functions discharged by the Assistant Registrar under Sec. 48 read with Sec. 6 (2) of the Bihar and Orissa Co-operative Societies Act. In that Connection the Supreme Court observed:a Register exercising powers under Sec. 8 must be held to discharge the duties which would otherwise have fallen on the ordinary civil and revenue Courts of the land The Registrar has not merely the trappings of a Court but in many respects he is given the same powers as are given to ordinary Civil Courts of the land by the Code of Civil Procedure including the power to summon and examine witnesses on oath the Dowel to order inspection of documents to hear the parties after framing issues to review his own order and even exercise the inherent jurisdiction of Courts mentioned in Sec. 151 of the Code of Civil Procedure In adjudicating upon a dispute referred order Sec. 48 of the Act the Registrar is to all intents and purpose a Court discharging the same functions and duties in the same manner as a Court of law is expected to do Wherefore an Assistant Registrar discharging the function of Register under Sec. 48 read with Sec. 6 (2) of Bihar and Orissa Co-operative Societies Act is a Court. In that connection the Supreme Court observed:in Our opinion Art 228 of the Constitution does not indicate that unless a High Court can withdrawl a case to itself from another Court for disposing of a substantial question of law ah to the Interpretation of the Constitution the latter Court is not subordinate to the High Court This article is only Intended to confer jurisdiction and power on the High Court to withdraw a case for the purpose mentioned above from he ordinary Courts of law where decision may in the normal course of things be taken up to the High Court by way of an appeal Article 227 is of wider ambit; it does not limit the jurisdiction of the High Court to the hierarchy of Courts Functioning directly under it under the Civil procedare Code and Criminal Procedure Code but it gives the High Court power to correct errors of various kinds of all Court v. and Tribunals in appropriate cases Needless to add that errors as to the interpretation of the Constitution Is not out of the purview of Art. 221 although the High Court could not under the powers conferred by this Article withdraw a case to itself from a Tribunal and dispose of the same or determine merely the question of law as to the interpretation of the Constitution arising before the Tribunal. In our view the subordination for the purpose of Sec. 3 of the Contempt of Courts Act mean judicial subordination under the hierarchy of Courts under the Civil procedure Color the Criminal Procedure Cede. The Supreme Court has further observed:it may not be out of place to note that subordinate Courts have been dealt with in Chapter VI of the Constitution and Art. 235 of the Constitution gives the High Court the control over District Courts and Court subordinate thereto by providing for powers like posting and promotion and the grant of leave to persons belonging to the judicial service of a State. Such control is not judicial control and a Court may be subordinate to a High Court for proposes other than judicial control ( 34 ) IN the case of CHIEF JUSTICE A. P. V. L. V. A. DIKSHITULU REPORTED IN AIR 1979 SC 19 the Supreme Court had occasion to consider the administrative and disciplinary control of the High Court by the Chief Justice under Art. 229 of the Constitution and has also considered whether such disciplinary proceedings should go to the Administrative Tribunals constituted under Art. 371-D of the Constitution. Under clause (3) of Art. 371-D the President has power to appoint the Administrative Tribunal. In that connection the Supreme Court observed:the phrase Civil service of the State remains more or less an amosphous expression as it has not been defined any where in the Constitution Contracted with It the expressions judicial service of the State and District Judge have been specifically defined in Art. 236 and thus given a distinctive. definite meaning by the Constitution makers. Construed loosely in its oldest General sense; this elastic phrase can be stretched to include the officers and servants of the High Court as well as members of the Subordinate Judiciary. understood in its strict narrow sense in harmony with the basic constitutional scheme embodied in Chapters V and VI part VI and centralised In Arts. 229 and 235 thereof the phrase will not take in High Court staff and the subordinate Judiciary. Proceeding further the Supreme Court observed that if wider meaning is given to to the phrase Civil Services of the State in Art. 371-D (3) to include in it the High Court staff and the members of the subordinate judiciary it will rob the powers of the Chief Justice under Art. 229 and the High Court under Art. 235 thereby making the directive principle in Art. 50 and the fundamental concept of independence of judiciary a m ockery. In that connection the Supreme Court also observed: in our quest for the true intention of Parliament therefore we must eschew this wide literal interpretation which will defeat or render otiose the scheme of Chapters IV and V Part VI particularised in Arts. 229 and 235 and instead choose the alternative interpretation according to which members of the High Court staff and the subordinate judiciary will not fall within the purview of the phrase Civil services of the State. 229 and 235 and instead choose the alternative interpretation according to which members of the High Court staff and the subordinate judiciary will not fall within the purview of the phrase Civil services of the State. Such a restricted Construction will ensure smooth working of the Constitution and harmony amongst its various provision. ( 35 ) FROM the above decisions it is clear that there in no strict separation of powers between the three principal organs of the State namely Legislature Executive and Judiciary. Judicial power does not vest exclusively in the judiciary unlike in the Australian Constitution. In fact directive principles of State policy contained in Art 50 which directs that the State shall take steps to separate Judiciary from the executive shows that separation of judiciary from the executive was a goal to be achieved in future and was not achieved by the Constitution Itself Under the Constitution Courts alone have no monopoly of the judicial power the Constitution though providing for an Independent judiciary in the States has not completely and strictly applied the doctrine of separation of powers The High Court is independent ant the subordinate Courts by keeping them under the control of the High Court are also provided a measure of independence As regards other authorities dispensing justice without the administrative control Judicial superintendence by independence judiciary is provided under Arts 126 217 ant 136 of the constitution Other Tribunals though the say be broadly and loosely and Courts cannot be said to be Courts in the sense in which the word Court is used in Chapter VI In Chapter VI the word Subordinate Court has been used in the sense of administrative control over the subordinate Courts by the High Court The expression exclusively and intended occurring in Act236 emphasize the fact that judicial service Consists of persons intended to fill thee posts of District Judges (properly so called) and other civil judicial posts inferior to the post of District Judge and that is the exclusive judicial service set up coming under Chapter VI of the Constitution It cannot be said that the Labour Courts and Industrial Courts are within the meaning of Chapter VI nor they are subordinate to the High Court within the meaning of Chapter VI. ( 36 ) WE can usefully look into the decisions rendered by Allahabad Court A single Judge of the Allahabad High Court in the case of M/s. JAIN SHUDH VANASPATI LTD. V. LABOUR COURT GHAZIABAD REPORTED IN 1983 (2) LABOUR and INDUSTRIAL CASES 1249 has categorically held as follows :on a reading of Chapter Vl of the Constitution of India it it apparent that it relates to the subordinate Courts. The Civil Judicial Post mentioned in the definition of the word judicial service are those posts which are subordinate to the District Judge. It can by no stretch of imagination be said that the Presiding Officers of the about Courts are Courts subordinate to the District Judges. There is no control whatsoever of the District Judge over the Presiding Officers of the Labour Courts. The Presiding Officers of the Labour Courts cannot therefore come within the expression judicial service as defined in Art. 236 (b) of the Constitution. The single Judge of the Allahabad High Court has further observed:the mere fact that a particular tribunal or an authority exercises judicial or quasi-judicial function and in law they are called tribunal or Courts does not by Itself Imply that the persons presiding over the said tribunal and Courts should exclusively be members of the said judicial service. The Presiding Officers of the Labour Court do not come within the expression of Judicial Service as used in Art. 236 (b) of the Constitution and as such Art. 234 does not apply ( 37 ) A Bench of the Allahabad High Court in the case of M/s. POYSHA INDUSTRIAL CO. LTD. GHAZIABAD V. STATE OF U. P. 1985 LABOUR and INDUSTRIAL CASES 1683 has categorically held:that a Presiding Officer of a Labour Court does not belong to the judicial service as contemplated in Art. 236 and as such the provisions contained in Art. 234 of the Constitution were not attracted in the case of the appointed of the Presiding Officers of the Labour Courts. Chapter VI of part VI of the Constitution under which Arts. 233 to 237 fall was confined in its operation for regular Civil and Criminal Courts constituted under the hierarchy of the Courts. It could therefore be safety held that for the purpose of the appointment of a Presiding Officer of a Labour Court under the U. P. Act. Chapter VI of part VI of the Constitution under which Arts. 233 to 237 fall was confined in its operation for regular Civil and Criminal Courts constituted under the hierarchy of the Courts. It could therefore be safety held that for the purpose of the appointment of a Presiding Officer of a Labour Court under the U. P. Act. a reference to the provisions contained in Chapter VI of the Constitution was out of place. ( 38 ) UNLESS the context otherwise requires the General Clauses Act 1897 applies for the interpretation of the Constitution The expression District Judge as defined in Art 236 (a) of the Constitution specifically and clearly includes those enumerated in that article and has to be construed as So illustrative as to include categories of the same colour its ordinary hierarchy of judicial system It has to follow the wellknown canon of construction and interpretation of statutes i. e. ejusdem generis. It is also to be borne in mind that at the time of framing of the Constitution the Industrial Disputes Act and Bombay Industrial Relations Act and Tenancy in Land Reforms and Revenue Legislations wore existing important legislations While defining District Judge if Constitution makers took care to include Addl. It is also to be borne in mind that at the time of framing of the Constitution the Industrial Disputes Act and Bombay Industrial Relations Act and Tenancy in Land Reforms and Revenue Legislations wore existing important legislations While defining District Judge if Constitution makers took care to include Addl. District Judge Joint District Judge Assistant District Judge Sessions Judge Additional Sessions Judge Assistant Sessions Judge they would have it they hat so intended certainly not omitted to Include labour and other special judiciary Once the Constitution itself has given the definition It will be too much to import the definition given in Sec. 3 (17) or Sec 3 (32) of the General Clauses Act 1897 into the interpretation given by the Constitution regarding the expression District Judge in Art 236 (a) of the Constitutional The Bombay High Court judgment referred to above has adopted the definition in the General Clauses Act and interpreted Sec. 236 which in our opinion is not correct on the plain reading of the Articles pertaining to subordinate Courts which occurs in Chapter Vl of Part VI of the Constitution As correctly contended by the learned Advocate General the definition in Sec. 3 (17) of the General Clauses Act cannot be lifted and fitted in Art 236 of the Constitution ( 39 ) ARTICLES 233 to 237 of the Constitution deal with the Subordinate Court the qualification for appointment as a District Judge the recruitment process of the District Judge the control of the High Court over subordinate Courts and the application of the provisions of Chapter Vl to certain class or classes of Magistrates and are clear and definite to exclude any other definition for the expression District Judge except that given in these Articles No doubt as contented by Mr. M. C. Bhatt the District Court is not the creation of the Constitution but it is too much to state that the Civil Courts Acts of the respective State bring into the definition of the District Judge any Judge appointed by the State irrespective of the provision contained in Art 233 onwards As correctly contended by Mr. M. C. Bhatt the District Court is not the creation of the Constitution but it is too much to state that the Civil Courts Acts of the respective State bring into the definition of the District Judge any Judge appointed by the State irrespective of the provision contained in Art 233 onwards As correctly contended by Mr. J. N. Patel the purpose of enacting the Bombay Industrial Relations Act and the Industrial Disputes Act the manner and method for appointing members of the Industrial Courts (Sec. 10 of B. I. R. Act) the recruitment to the post of Labour Judges (Sec. 9 of B. I. R. Act) do not fit of any of the provisions of the Constitution. ( 40 ) IT is clear that the Courts functioning under Bombay Industrial Relations Act and Industrial Disputes Act cannot be equated other to the District Court or to any subordinate Court coming under the administrative control of the High Court as per the constitutional provisions. At best they may be performing quasi-judicial functions which may be broadly called Court. As we have already observed the judicial power of the State is not exclusively vested in the Courts established under the Constitution but some of the judicial powers are retained by the State and they perform such duties through the Tribunals and Courts established under the statutes or rules made thereunder by the State Governments. . ( 41 ) FOR all these reasons we are of the view that neither the General Clauses Act nor the Bombay General Clauses Act can be applied for interpreting the provisions of Chapter Vl Part VI of the Constitution. ( 42 ) WE are therefore clearly of the view that the Labour Court and Industrial Court are not District Judge and judicial service within the meaning of Arts. 235 and 236 and they are not under the administrative control of the High Court and therefore Sec. 9 of the B. I. R. Act in not violative of any Constitutional provision in Part IV of the Constitution. It may also be noted that these Labour Court Judges were appointed by the Government without any recommendation consultation or concurrence of the High Court. If the petitioners are right the appointments would be void. Bombay High Court had struck down the appointments. ( 43 ) THE argument of Mr. It may also be noted that these Labour Court Judges were appointed by the Government without any recommendation consultation or concurrence of the High Court. If the petitioners are right the appointments would be void. Bombay High Court had struck down the appointments. ( 43 ) THE argument of Mr. M. C. Bhatt to the effect that the High Court has administrative control over such Tribunals by virtue of Art. 227 of the Constitution in our view does not have any merit. Article 227 of the Constitution reads as follows:227 Power of superintendence over all Courts by the High Courts : 1. Every High Court shall have superintendence over all courts and tribunals throughout the territories In relation to which it exercises jurisdiction (2) Without prejudice to thee generally of the foregoing Provision the High Court any (a) call for returns from such Court; (b) make and issue general rules and prescribed forms for regulating the practice and proceedings of such Court; and (c) prescribe forms in which books entries and accounts shall be kept by the officers of any such Court. 3. The High Court may also settle tables of fees to be allow d to the sheriff and all clerks of such Courts and to attorneys advocate and Pleader practising therein; Provided that any rules made forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being force and shall require the previous approval of the Governor. (4) Nothing in this articles shall be deemed to confer on a High Court powers of superintendence over any Court or tribunal constituted by or under any law relating to the Armed Forces. ( 44 ) DURING the period i. e. from 1-2-1977 which is the date on which 42nd Amendment Act 1976 came into force up till 20-6-1979 which is the date on which the 44th Amendment Act 1979 came into force restoring Art. 227 to the position that stood before the 42nd Amendment It road as follows227 (1) Every High Court shall have superintendence over all Courts subject to its appellate jurisdiction. (2) Without prejudice to the generality of the foregoing provision the High Court may - (a) call for returns from such Courts : (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and (c) prescribe forms in which books entries and account shall be kept by the officers of any such Courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys advocates and pleaders prectising therein; Provided that any rules made form prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being inforce and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court power of superintendence over any Court or Tribunal constituted by or under any law relating to the Armed Forces. (5) Nothings in this article shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision. ( 45 ) AS on date Art. 227 (1) gives the power of superintendence to the High Court over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. Sub-clause (2) of Art. 227 gives the particulars regarding which the High Court can act. Sub-clauses (3) and (4) of Art. 227 also prescribe the limitations regarding the powers that is exercisable by the High Court. It will be seen from clauses (2) and (3) Art. 227 that there is reference only to Courts and not to Tribunals. Even Art. 228 speaks of Court subordinate to the High Court and does not spell out eases pending before Tribunals. Mr. M. C. Bhatt learned Counsel appearing for the appellants pointing out the 42nd Amendment which we have extracted above contended that the administrative control which was taken away by this amendment was again given to the High Court by the 44th Amendment by adding the word Tribunals. We are not able to appreciate this argument. By 42nd Amendment the powers of the High Court were restricted. Before 42nd Amendment the High Court had by way of superintendence power over all Courts and Tribunals. We are not able to appreciate this argument. By 42nd Amendment the powers of the High Court were restricted. Before 42nd Amendment the High Court had by way of superintendence power over all Courts and Tribunals. But after the and Amendment its power was restricted to all Courts subject to Its appellate jurisdiction. In this 42nd Amendment sub- clause (5) of Art. 227 specifically excluded the jurisdiction of the High Court to question any judgment of any inferior Court which is not otherwise subject to appeal or revision. By restoring the Art. 227 to its original position by the 44th Amendment the judicial superintendence of the High Court was enlarged. It will be significant to note that Art. 227 (1) spells out the superintendence of the High Court over all Courts and Tribunals while in Art. 235 it specks about the control over District Courts and Courts subordinate thereto by the High Court. It is only in Art. 235 the power of posting promotion and grant of leave are spelt out. Thus it is clear that the use of word superintendence in Art. 227 relates only to the judicial superintendence and not administrative control by the High Court. The administrative control of the High Court has been clearly spelt out by Art. 235 of the Constitution. The learned Advocate General correctly pointed out that the power of posting and promotion will also include transfer of the Judges of the District Courts and also the Judges inferior to the post of District Judge. ( 46 ) FURTHER it has been made clear by various decisions of the Supreme Court which we have extracted in paragraphs supra that all Courts are Tribunals but all Tribunals are not Courts. The superintendence over the Tribunals by interpreting Art. 227 can be only judicial superintendence and administrative superintendence of Courts for such of those powers which are enumerated in clauses (2) and (3) of Art. 227 of the Constitution. ( 47 ) THE discussion made by us spells out that the Administrative control of Industrial Court and Labour Courts for the purpose of appointment promotion and transfer are with the Government. The tower of superintendence is over the Courts and Tribunals and not over the authority of Government making appointments and transfers. ( 47 ) THE discussion made by us spells out that the Administrative control of Industrial Court and Labour Courts for the purpose of appointment promotion and transfer are with the Government. The tower of superintendence is over the Courts and Tribunals and not over the authority of Government making appointments and transfers. Such administrative actions of the Government may be subject to j to judicial review under Art. 32 or Art 226 but not under Arts. 227 or 136 of the Constitution of India. The apprehension in the mind of Mr. M. C. Bhatt learned Counsel appearing for the appellants that such control should not be vested with the Government in as much as the Government is also a litigant in any of the labour matters sounds reasonable. It is for the legislature to take note of Art. 50 of the Constitution of India and entrust the powers under the Industrial Disputes Act and also Bombay Industrial Relations Act with the industrial service of the State occurring in Chapter VI Part VI of the Constitution. Earlier the better. In as much as our Constitution recognises such judicial power in the hands of the executive and the residuary with the judicial service of the State unlike Australian Constitution it cannot be said that the Industrial Court and Labour Court Judges come under the purview of the judicial service of the State coming under Chapter VI of Part VI of the Constitution. As long as the Government has the power to retain certain judicial functions through such Tribunals we cannot equate such Tribunals constituted under the statutes and the rules made thereunder to come under the purview of the judicial service of the State. It will be butter than the Legislature and Executive bestow their attention to put the Industrial Courts and Labour Courts under the State Judicial Service amenable to Arts. 233 to 237 of the Constitution. Until shell it is not possible for us to treat such Tribunals as District Judge and other Labour Courts as Judges inferior to the post of District Judge. When such clear distribution of the judicial power has been spelt out by the statute between the Courts established under these Acts 2nd the regular Judicial service as per the Constitution it is difficult to appreciate thee argument of Mr. When such clear distribution of the judicial power has been spelt out by the statute between the Courts established under these Acts 2nd the regular Judicial service as per the Constitution it is difficult to appreciate thee argument of Mr. M. C. Bhatt that by virtue of Art. 227 both administrative and judicial superintendence and control vests with the High Court. From the foregoing discussion and also from the facts that the word Superintendence alone has been used in Art. 227 in contrast to the word control used in Art. 235 the administrative control of the High Court cannot be spelt cut from Art. 227 except the judicial superintendence by the High Court over the Tribunals and Labour Courts on the strength of Art. 227 of the Constitution. ( 48 ) THE power of superintendence of the Industrial Court over Labour Courts is also similar to the power of superintendence udder Art. 227. This power of superintendence of Industrial Court cannot be construed as power of control for the same reasons which we have discussed earlier in the context of High Court. ( 49 ) MR. M C. Bhatt after reading Sec. 78-B of the Bombay Industrial Relations Act which deals with the power of the Labour Courts to try offences punishable under the B. I. R. Act submits that Labour Court Judges are also exercising criminal jurisdiction and as such they are Magistrates under the Criminal Procedure Code. In support of this contention Mr. M. C. Bhatt also lead Sec. 83 of the Bombay Industrial Relations Act which deals with the powers and procedures of the Labour Court in the trials of offence punishable under the Act. This Section reads as follows:83 In respect of offences punishable under this Act a Labour Court shall have all the powers under the Code of Criminal Procedure 1898 (of a Magistrate of First Class) and in the trial of every such offence shall follow the procedure laid down in Chapter XXII of the said Code for a summary trial in which an appeal lies and the rest of the provisions of the said Code shall 60 far as may be apply to such trial. ( 50 ) ACCORDING to Mr. ( 50 ) ACCORDING to Mr. M. C. Bhatt since the Labour Courts will have the powers of Magistrate as per the provisions of the General Clauses Act they will come under the administrative and judicial control of the High Court as per Sec. 11 of the Criminal Procedure Code which reads as follows;11 In every District (not being a Metropolitan area) there shall be established as Courts of Judicial Magistrates of the First Class and of the Second Class and at such places as the State Government may after consultation with the High Court by notification specify : (Provided that the State Government may after consultation with the High Court established for any local area one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any Particular case or particular class of cases and where any such Special Court is established no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of ca tow the trial of which such Special Court of Judicial Magistrate has been established.) (2) The Presiding Officers of such Courts shall be appointed by the High Court (3) The High Court may whenever it appears to it to be expedient or necessary confer the powers of a Judicial Magistrate of the First Class or of the Second Class on any member of the Judicial Service of the State functioning is a Judge in Civil Court ( 51 ) FROM the bare reading of above Section it is clear that this Section applies to Courts of Judicial Magistrates and not to all Magistrates Labour Court even though it may be a Magistrate within the definition of Bombay General Clauses Act it would not be a Court of Judicial Magistrate as contemplated by Sec. 11 of the Criminal Procedure Code and therefore Sec. 11 has no application Article 237 is also not attracted because there is no notification by the Governor bringing these Labour Courts exercising powers of Magistrate within the purview of Arts 233 to 236 ( 52 ) ARTICLE237 empowers the Governor to issue public notification in order to apply the provisions of Arts 233 to 236 and any rules made thereunder in relation to any class or classes of Magistrate in the State 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 attempt to lift the definition of the Magistrate in General Clauses Act and reading the Art 237 along with the General Clauses Act in our opinion in incorrect and this Art 237 amply bears out the limited application of the provision It this Chapter VI of the Constitution on such Magistrates notified in the manner prescribed under this Article by the Governor ( 53 ) AS a result of the aforesaid discussion the following conclusions emerge (I) The Constitution clearly visualizes two separate and different concept viz Courts and Tribunals (ii) Articles 136 and 227 (1) (a) use both expressions where as Chapter VI Subordinate Courts Arts 233 to 237 and 227 (2) and (3) use the word Court only thus manifesting constitutional intention not to include Tribunals (iii) Judicial power of the State is not the monopoly of the judiciary; there is no strict separation of powers An authority other than a Court vested with the judicial power of the State it a Tribunal (A. C. Company and Chandra Mohan cases supra ). (iv) Industrial Court is Court of Industrial Arbitration which is conferred special jurisdiction not having any planary or residual Jurisdiction. (v) Labour legislations - B. I. R. Act I. D. Act W. C Act M. W. Act P. F. Act create special forum for special kinds of disputes and not only of ordinary civil rights but also new rights and obligations. (vi) All Tribunals are not Courts and are not administratively subordinate to the High Court and are not under the control of the High Court. (vii) Merely because a Tribunal is a Court for the purpose of the Contempt of Courts Act and judicially subordinate to the High Court would not make such Tribunal subordinate Court within the meaning of Chapter VI Part VI of the Constitution (Jugal Kishore case supra ). (viii) So also merely because a Tribunal is subject to Art. 136 or 227 (1) would not make a Court subordinate to High Court. (ix) Labour and Industrial Courts are out of the hierarchy of ordinary judicial system exorcising judicial power of the State in a decree and extent different from ordinary Courts (Bharat Bank case supra ). (x) Tribunals are not Courts. When the Constitution speak of Courts in Arts. 136 227 or 228 or in Arts. 233 to 237 or in the Lists contemplates Courts of Civil Judicature but not Tribunals other than such Courts. (Harinagar Sugar Mills case supra ). (xi) Tribunals decide controversies arising under special laws. . . Brcadly speaking certain special matters go before Tribunals and the residue goes before the Ordinary Courts of civil Judicature. These Civil Courts perform all the judicial functions of the State except those that are excluded from their jurisdiction. (Harinagar Sugar Mills supra ). (xii) Since the Labour Courts and Industrial Courts are not Courts but are Tribunals and also since they are not administratively subordinate to High Court the transfer of these Judges is not covered under Art. 235 of the Constitution. (xiii) Article 227 is power of superintendence and not of control over Courts and Tribunals. It is not the power of control over Governments administrative actions of appointment and transfer of Labour Court Judges Similar is the power of superintendence of Industrial Court over Labour Courts but not control over Government. (xiii) Article 227 is power of superintendence and not of control over Courts and Tribunals. It is not the power of control over Governments administrative actions of appointment and transfer of Labour Court Judges Similar is the power of superintendence of Industrial Court over Labour Courts but not control over Government. (xiv) It is for the legislature to take note of Art. 50 and implement the Directive Principle of State Policy to separate the Labour Judiciary from the executive. Earlier the better. (xv) Labour Courts are having some powers of Magistrates and therefore they are Magistrates also but they are not Courts of Judicial Magistrates under Sec. 11 of the Criminal Procedure Code and Sec. 11 has no application to them nor are they covered by Art. 136 nor by 237. ( 54 ) MR. M. C. Bhatt next contended that these Labour Court Judges should not have been transferred since transfer is not an implied condition of service. According to the learned Counsel unless transfer has been specifically provided for the recruitment is only for a particular post and hence transfer cannot be effected. for this proposition he cited the decision in the case of AUTOMOTIVE MANUFACTURERS V. NANDALAL REPORTED IN (1977) 18 GLR 786. The said decision reads s follows. If transferability out of the City was not an express condition of service it cannot be imposed on an employee by ascribing it to him under the doctrine of an implied term of service. It can be read into the contract as an implied term if there is some compulsion to read it into a contract of service by necessary implication having regard to the very nature of the employment. To hold that it was an implied condition would be to attribute to the employee a deliberate desire to subject himself to transferability. One cannot ascribe to the respondent a lowly paid employee such a desire to subject himself to transfer to a branch outside the city In which he secured employment as it would have disastrous consequences on his economic and family life. ( 55 ) SECTION 5 of the Bombay Industrial Relations Act deals with the constitution of the Labour Court. under Sec. 9 Labour Courts are constituted in respect of a particular local area as may be prescribed by specified notification. Reading these Sections and also the decision cited above. Mr. ( 55 ) SECTION 5 of the Bombay Industrial Relations Act deals with the constitution of the Labour Court. under Sec. 9 Labour Courts are constituted in respect of a particular local area as may be prescribed by specified notification. Reading these Sections and also the decision cited above. Mr. M C. Bhatt submitted that there cannot be any transfer of Labour Court Judges. We are afraid we are not able to appreciate this view. It is an admitted fact that Labour Courts exist in various parts of the State of Gujarat. The decision reported in (1977) 18 GLR 786 (supra) also states:it can be read into the contract as an implied term if there is same compulsion to read it into a contract of service by necessary implication having regard to the very nature of employment. In the present case the very nature of the employment and also the constitution of the Labour Courts in various parts of the Gujarat State necessarily spells out the transferability of such pots. Even apart from this the advertisement invited applications for the post of Judge Labour Court (Junior Division) in General State Service Class I and it is clearly stated in condition No. 8 (10) that a selected candidate will be required to serve anywhere in the State of Gujarat. In the affidavit-in-reply filed by the Deputy Secretary to the Government of Gujarat Labour and Employment Department it has been specifically stated that the persons holding posts which constitute a common cadre are by necessary implication inter-transferable to an equivalent post anywhere in the State. It has been further stated in the reply affidavit that the power of transfer by provisions of B. I. R. Act is necessary implication and such a transfer does not amount or constitute a fresh appointment as alleged. It is further staled that the power of appointment would include incidental and ancillary powers including power of transfer. Rules called Labour Court (Junior Division) Recruitment Rules 1982 (so also Senior Division Rules) which were published by the Notification of the Labour Court and Employment Department Sachivalaya Government of Gujarat dated 3/05/1982 clearly states the power of the Government to appoint Judge Labour Court. Rules called Labour Court (Junior Division) Recruitment Rules 1982 (so also Senior Division Rules) which were published by the Notification of the Labour Court and Employment Department Sachivalaya Government of Gujarat dated 3/05/1982 clearly states the power of the Government to appoint Judge Labour Court. Hence considering the nature of the appointment and also the purpose for which such Courts are constituted throughout the State of Gujarat it can be spelt out that there is an implied power of transfer with the Government which has the power to appoint such officers. ( 56 ) EVEN in case of judicial service which in directly under the control of the High Court under Art. 235 of the Constitution there is no express provision for the transferability. However there is no dispute that they are transferable. They are also governed by the Bombay Civil Services Rules. The Labour Court Judges also would be governed by these Rules. The learned Counsel for the appellants submitted that it is not the case of the Government that they are governed by the Bombay Civil Services Rules and it has not been contended so in the affidavit-in-reply. Once they are held to be Government servant there is no reason as to why the Bombay Civil Services Rules should not be applicable to them. Rule 17 of the Bombay Civil Services Rules reads as follows:unless in any case it be otherwise distinctly Provided the whole time of a Government servant is at the disposal of Government and he employed in any manner required by the proper authority whether the services required of him are such as would ordinarily be remunerated from the consolidated fund of India or of a State of from the revenues of a local fund or from the fund of a body incorporated or not which is wholly or substantially owned or controlled by the Government. Thus under this Rule it is clear that every Government servant is transferable and this is the express provision for transfer. ( 57 ) AS regards the contention of mala fide and arbitrariness it is to be seen that there is no allegation of mala fides against the President of the Industrial Courts who has made the recommendation of these transfers. Once that is gone no mala fides can be attached to the Government decision in accepting the recommendation. ( 57 ) AS regards the contention of mala fide and arbitrariness it is to be seen that there is no allegation of mala fides against the President of the Industrial Courts who has made the recommendation of these transfers. Once that is gone no mala fides can be attached to the Government decision in accepting the recommendation. ( 58 ) THE transfers are completely within the purview of the appointing authority. The administrative exigencies and the necessity to fill up certain Labour Courts have to he judge by the administrative authorities concerned and that cannot be a subject matter of a writ proceeding. The action in this case was taken on the proposal made and initiated by the President of the Industrial Court. In this connection the learned Advocate General road the averments in the Special Civil Application which run as follows:the petitioners further submit that the impugned transfers of all the Labour Judges are absolutely mala fide and the product of extraneous and political considerations on the part of the Government. The sole motive of the Government behind the transfers is to instill a sense of fear among the labour judges and to compel them to follow a particular line and to toe the policy of the Government. Rebutting this averment the learned Advocate General stated that there is absolutely no motive to effect such transfers. In this connection learned Advocate General read the proposal of the President of the Industrial Court Gujarat wherein the President has clearly given the reasons and the necessity to transfer these Judges. Inasmuch as mala fides alleged against the President Industrial Court Gujarat have been withdrawn it cannot be said that the reasoning given by the President of the Industrial Court for transferring these Labour Court Judges is in any way tainted. ( 59 ) MR. M. C. Bhatt learned Counsel appearing for the appellants contended that the Government has not applied its mind but acted on the recommendation of the President of the Industrial Court and this vitiate the transfers. Moreover the President alone cannot be considered as the Industrial Court in the absence of two other members concurring with such recommendation made by the President. Such argument cannot be countenanced since the Government which has the power to transfer can act only through its officers and get information and reasoning only from the head of the departments. Moreover the President alone cannot be considered as the Industrial Court in the absence of two other members concurring with such recommendation made by the President. Such argument cannot be countenanced since the Government which has the power to transfer can act only through its officers and get information and reasoning only from the head of the departments. The President Industrial Court after correctly appraising the situation prevailing in various Courts of the State thought it fit to recommend to transfer the Labour Court Judges and has also given reasons for effecting such transfers. It is unfortunate that such transfers have not been given effect to for a number of years owing to the stay given by this Court. As correctly putforth by the learned Advocate General none of the transferred Judges of the Labour Courts have made grievance regarding such transfers. We find that the Government has correctly effected transfers in the interest of administration of Labour Courts. ( 60 ) IN two or three cases it Was pointed out that there was hardly significant time left for the transferees to do any useful work st the new transferred place in view of the impending retirement. Since those officers have already retired that point does not survive for consideration. . ( 61 ) FOR the abovesaid reasons we are of the view that the Government has power under Sec. 9 to appoint end transfer the Labour Court Judges and it is not necessary for such transfer of Labour Court Judges the provisions of Arts. 233 234 235 and 236 of the Constitution should be followed. Inasmuch as we have found that the Industrial Court or Labour Court is not a District Judge and the Labour Court Judges are not inferior to the post of the District Judge it is not possible to invoke the provisions under Arts. 233 to 237 in Chapter VI of Part VI of the Constitution and since Industrial Court and the Labour Courts are called Courts only in the broad and loose sense we hold that Sec. 9 of the B. I. R. Act is Dot ultra vires Arts. 233 234 235 and 236 of the Constitution. ( 62 ) FOR the foregoing reasons we are not interfering with the judgment of the learned single Judge passed in Special Civil Application No. 3313 of 1984 and accordingly this Letters Patent Appeal is dismissed. No coats. 233 234 235 and 236 of the Constitution. ( 62 ) FOR the foregoing reasons we are not interfering with the judgment of the learned single Judge passed in Special Civil Application No. 3313 of 1984 and accordingly this Letters Patent Appeal is dismissed. No coats. ( 63 ) LEARNED Counsel for the appellants prays that a certificate of fitness and leave to appeal to Supreme Court be granted in view of the difference of views between two High Courts i. e. Allahabad and Bombay. We do not find that it is necessary to grant leave in view of the fact that we have followed Supreme Court judgments in this regard. Therefore there is no question of granting the said request. Moreover in our opinion no substantial question of law of general importance which needs to be decided by the Supreme Court arises in this case and as such the prayer for certificate for appeal to the Supreme Court is rejected. ( 64 ) THE learned Counsel for the appellant prays that the interim relief which has been granted since 1984 against the transfers may be continued for a reasonable period to enable the appellant to carry the matter to the Supreme Court. We have found that transfer is an incident of service. It is unfortunate that transfers remained stayed for five years. But now we do not find any reason to continue the interim relief and hence the prayer to continue the interim relief is rejected. Mr. M. C. Bhatt learned Counsel for the appellant submits that the transfers at this stage would result Into hardship to the officers having school/college going children. This hardship can be brought to the notice of the Government. The learned Advocate General on behalf of the Government states that the Government will look into such cases and do the needful. (KMV) order accordingly. .