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2000 DIGILAW 532 (ALL)

S. C. SAXENA v. STATE OF UTTAR PRADESH

2000-04-07

O.P.GARG, S.HARKAULI

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O. P. GARG, S. HARKAULI, JJ. ( 1 ) THE core question, which has been canvassed in this writ petition is whether the officers of the indian Administrative Service, Labour and other departments who have never discharged judicial functions are legally capable of manning the Labour Courts and the Industrial Tribunals constituted under the U. P. Industrial Disputes Act, 1947. It was pointed out that there are 19 labour Courts and 6 Industrial Tribunals in the State of U. P. and except for one, all are being presided over by the officers of the administrative, labour and other departments. It was urged that in view of the decision of the Apex Court in the case of State of Maharahstra v. Labour Law practitioners Association, AIR 1998 SC 1233 , the said Tribunals and Courts cannot be presided over by those officers who are not qualified to serve as Judges under Article 236 of the constitution of India. ( 2 ) HEARD Sri Sandeep Saxena, learned Counsel for the petitioner as well as learned Standing counsel. ( 3 ) THE present petitioner approached the Apex Court by filing a Writ Petition No. 497 of 1992 which some interim orders were passed. On 22. 11. 1995 (copy whereof is Annexure 1-A), the honble Supreme Court passed the following orders : "learned Counsel for the State of U. P. is granted two weeks time to file a full list of the names with particulars including qualifications of the persons who are at present Presiding Officers in the Industrial Tribunals and, the Labour Courts in the State of U. P. We also direct that during this period no further appointment to any of these posts would be made. List the matter on 12. 12. 1995. " Again on 5. 2. 1996 another interim order (Annexure 2) was passed by the Apex Court, which reads as below :"pursuant to the order passed on 22. 11. 1995 by this Court, directing the State of Uttar Pradesh to file full list of names and particulars including qualifications of persons who are at present the presiding Officers of the Industrial Tribunals and Labour Courts in the State of U. P. an affidavit has been filed giving details of such Presiding Officers of the Industrial Tribunals and Labour courts. 1995 by this Court, directing the State of Uttar Pradesh to file full list of names and particulars including qualifications of persons who are at present the presiding Officers of the Industrial Tribunals and Labour Courts in the State of U. P. an affidavit has been filed giving details of such Presiding Officers of the Industrial Tribunals and Labour courts. From the said list it appears that majority of the Presiding Officers of such Tribunals and labour Courts were earlier members of Indian Administrative service or State Executive service. It need not be pointed out that function of Industrial Tribunals and the Labour Courts are judicial in nature and they have to adjudicate disputes which are primarily and essentially judicial. Accordingly, we direct the respondent State to file further affidavit indicating their policy in respect of future appointments to those posts within one month from to day. The interim order passed on 22. 11. 1995 shall continue. List after 4 weeks. " ( 4 ) AFTER on 5. 2. 1996, another interim order (Annexure 3), was passed by the Apex Court that "it will be open to the respondents to fill up the vacant posts by retired High Court Judges or from amongst the members of the Higher Judicial Service, including those who have retired. " ultimately on 30. 8. 1996, the writ petition was allowed to be withdrawn on the appearance of learned Attorney General that all steps shall be taken while appointing persons to preside over industrial Tribunals and Labour Courts in accordance with the new Rules, which have been framed in the light of the direction of the Apex Court and steps were being taken for amending the relevant section of the U. P. Industrial Disputes Act, 1947 so that such Industrial Tribunal and Labour Courts function as Courts in true sense. The petition was allowed to be withdrawn giving the option to the present petitioner to approach this Court if the assurance, aforesaid, is not fully implemented. Copy of the order of the Apex Court dated 30. 8. 1996 is Annexure 5 to the Writ Petition. The petition was allowed to be withdrawn giving the option to the present petitioner to approach this Court if the assurance, aforesaid, is not fully implemented. Copy of the order of the Apex Court dated 30. 8. 1996 is Annexure 5 to the Writ Petition. ( 5 ) LEARNED Counsel for the petitioner urged that the assurance, which was given by the learned attorney General before the Apex Court has not been fully implemented and the present position, as it stands, is that an officer of the cadre of Indian Administrative Service, labour and other departments is eligible for appointment to the post of Presiding Officer, Industrial tribunal/labour Court, in view of the provisions of Section 4-E (3) of the Act, which runs as follows : " (3) No Person who is not or has not been a member of the Indian Administrative Service or the state Higher Judicial Service, or the Uttar Pradesh Nyayik Sewa or the State Labour Service or who is not or who has not been such member of the State Civil Service (Executive Branch) as has experience of working for at least three years in the Labour Department of the State, shall be engible for enrollment in the lists prepared under sub-Section (2 ). " The provisions, as it stands permits the appointment of a member of Indian Administrative service or Labour Service or State Civil Service (Executive Branch) to the post of the Presiding officer of the Industrial Tribunal, Labour Courts. Besides relying upon the decision of State of maharashtra (supra), emphatic reliance was placed on the observations made in paragraph 4 of the Full Bench decision of Gujarat High Court reported in Gujarat Mazdoor Sabha Baharampura and Anr. v. State of Gujarat and Anr. , 1998 LAB IC 2472; Paragraph 4 of the said decision runs as follows :"it is now beyond doubt that the Labour Judges occupy a very important position in adjudicating the disputes between the Management and the Labour. The disputes, which are brought before the Labour Judiciary, involve huge stakes, both for the Management as well as the workers. States in India, being Welfare States, have economic activities. State owned establishments are engaged in carrying on industries. Thus, in a large number of industrial disputes, State is one of the parties taking the part of the employer. The disputes, which are brought before the Labour Judiciary, involve huge stakes, both for the Management as well as the workers. States in India, being Welfare States, have economic activities. State owned establishments are engaged in carrying on industries. Thus, in a large number of industrial disputes, State is one of the parties taking the part of the employer. In this context the method of appointment of the labour Judiciary assumes great importance. It is absolutely necessary that the Labour Judges should be highly qualified, experienced, independent and committed to the Constitution of India. In other words, Labour Judiciary should be independent of the Executive Government as is the case of the Judiciary under the Constitution. On the basis, the petitioners urge that the Labour judiciary must be taken out of the control of the Executive Government. They, therefore, want the Industrial Courts and Labour Courts to fall within the ambit of Articles 233 to 237 of the constitution. " The conclusion arrived at was that persons presiding over Industrial Tribunals and Labour courts constitute a judicial service and their recruitment should be in accordance with Article 234 of the Constitution of India. A direction was issued that no appointment, promotion or transfer of the Presiding Officers of Labour Courts, Industrial Courts, or Industrial Tribunals under the Industrial Disputes Act, 1947 or the Bombay Industrial Relations Act, 1946 be made or ordered without complying with the provision of Chapter VI of Constitution of India. ( 6 ) THE decision of the Apex Court in State of Maharashtra v. Labour Law Practitioners association (supra) and the Full Bench decision of Gujarat High Court in Gujarat Mazdoor sabha (supra) give a quietus to the dispute raised in this petition. The State of Maharashtra has notified, the Maharashtra Judicial Officers of the Courts of Enquiry, Labour Courts and industrial Courts under the Bombay Industrial Relations Act, 1946 (XI of 1947) Recruitment, appointment and Disciplinary Action Rules, 1999 on 14th September, 1999 to give effect to the decision of the Apex Court in the State of Maharashtra v. Labour Law Practitioners Association (supra ). ( 7 ) SRI Sandeep Saxena, learned Counsel for the petitioner painstakingly pointed out that in view of the various interim orders passed by the Apex Court in Writ Petition No. 497 of 1992 filed by the present petitioner and the assurance given by the learned Attorney General, no steps have yet been taken by the State Government to remedy the situation and to fulfill and implement the solemn assurance given before the Apex Court, which otherwise should have received prompt attention. It was further pointed out that in a spate of writ petitions, this Court has passed interim orders injuncting the Presiding Officers of the Labour Courts/industrial Tribunals who were appointed without complying with the previsions of Chapter VI of the Constitution, from performing the functions and exercising their powers under the Act. On account of stay orders passed by this Court, a quixotic situation has arisen in the State. No person not belonging to the judicial service can be appointed to preside over the Industrial Tribunal or Labour Court. The presiding Officers from Executive Branch cannot perform their function under the Act on account of the existing stay orders and are sitting idle without any corresponding advantage. All the Labour Courts and Tribunals have virtually become non-functional and have come to a grinding halt. Thousand of labour cases are lying unattended to because of the stalemate which has occasioned on account of non-appointment of the officers to whom Chapter VI of the constitution of India applies. In nutshell, the submission of Sri Saxena is that these Presiding officer are earning their wages without doing any work resulting in avoidable wasteful expenditure. The matter requires serious scrutiny, as long four years period is to elapse after an assurance was held out before the Apex Court. ( 8 ) LEARNED Standing Counsel prays for and is granted four weeks time to file counter affidavit. The Chief Secretary, State of U. P. shall file his own affidavit indicating the steps taken by the state Government to implement the assurance given by the learned Attorney General to the Apex court in Writ Petition No. 497 of 1992, S. C. Saxena v. State of U. P. and Anr. and the reasons for the inaction in the matter. The Chief Secretary, State of U. P. shall file his own affidavit indicating the steps taken by the state Government to implement the assurance given by the learned Attorney General to the Apex court in Writ Petition No. 497 of 1992, S. C. Saxena v. State of U. P. and Anr. and the reasons for the inaction in the matter. ( 9 ) IN view of the facts and the legal position stated above, it is directed that all the Presiding officers of the U. P. Industrial Tribunals and the Labour Courts drawn from the cadres of the indian Administrative Service, Labour Service, State Civil Service (Executive Branch) and other departments, who have been appointed without complying with the provisions of Chapter VI of the Constitution of India, shall cease to function with immediate effect and their salary for the period 16th April, 2000 onwards shall not be charged and paid. ( 10 ) IT is further provided that the Chief Secretary, State of U. P. respondent No. 1 shall take immediate steps to fill all the posts of Presiding Officers of the Labour Courts and Industrial tribunals from amongst the retired High Court Judges or from amongst the members of the higher Judicial Service including those who have retired and the process of selection and appointment shall be brought to a logical conclusion positively by 30th June, 2000. List in the first week of the July 2000.