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2009 DIGILAW 231 (DEL)

Delhi Labour Union v. Govt. of NCT of Delhi

2009-02-25

AJIT PRAKASH SHAH, SANJIV KHANNA

body2009
ORDER 1. The Delhi Labour Union has filed the present Public Interest Litigation impugning the order dated April 30, 2004 passed by District Judge, Tis Hazari, Delhi, the respondent No. 2 transferring industrial dispute cases from the Labour Court presided over by Mr. D.K. Malhotra and Mr. S.S. Handa to the Labour Court of Ms. Deepa Sharma. It is submitted that the order of transfer is contrary to law and conflicts with the scheme of Industrial Disputes Act, 1947 (hereinafter referred to as the Act, for short). It is stated that the Act creates entirely separate, distinct and sui genesis system of administration of justice in matters relating to industrial disputes. It is submitted that it is only the "Appropriate Government" which has power and authority to refer industrial disputes to Labour Courts, Tribunals and other adjudicatory bodies constituted under the Act. On the basis of the provisions including Section 33B(1) of the Act it is submitted that the respondent No. 2 does not have any power to transfer cases. 2. The contention raised by the petitioner has to fail in view of the judgment of the Supreme Court in State of Maharashtra v. Labour Law Practitioners Association and Ors. : AIR 1998 SC 1233 : (1998) 2 SCC 688 : 1998 I LLJ 868. In the said case, the Supreme Court examined the provisions of the Act nature and functions of the Labour Court/Tribunals and Articles 233, 234, 235 and 236 of the Constitution of India. It was held that the Labour Court performs judicial functions as a Court, although ordinary civil Court may not be able to grant relief as are contemplated under the Act. Reference was made to Bharat Bank Limited v. Employees : AIR 1950 SC 188 : 1950 LLJ 921 wherein it has been observed as under: A true judicial decision presupposes an existence of dispute between two or more parties and then involves four requisites - (1) the presentation of their case by the parties; (2) ascertainment of facts by means of evidence adduced by the parties often with the assistance of argument; (3) if the dispute relates to a question of law submission of legal arguments by the parties, and 94) by decision which disposes of the whole matter by findings on fact and application of law to facts so found. Judged by the same tests, a labour Court would undoubtedly be a Court in the true sense of the term. The question, however, is whether such a Court and the presiding officer of such a Court can be said to hold a post in the judicial service of the State as defined in Article 236 of the Constitution. 3. Thereafter, the Supreme Court referred to Part VI Chapters V and VI of the Constitution of India and Articles 233, 234, 235 and 236 of the Constitution of India. With reference to Section 7 of the Act prescribing qualifications for a person for being appointed as the Judge of a Labour Court, reference was made to earlier judgments of the Supreme Court in Chandra Mohan v. State of U.P. : AIR 1966 SC 1987 : 1967 I LLJ 412, Statesman (P) Limited v. H.R. Deb : AIR 1968 SC 1495 and the Full Bench decision of Gujarat High Court in S.K. Mohammedbhikhan Hussainbhai v. Manager, Chandrabhanu Cinema AIR 1986 Guj 209 (FB) and it was observed as under: 20. The constitutional scheme under Chapter V of Part VI dealing with the High Courts and Chapter VI of Part VI dealing with the subordinate Courts shows a clear anxiety on the part of the framers of the Constitution to preserve and promote independence of the judiciary from the executive., Thus Article 233 which deals the High Court. Article 233 (2) has been interpreted as prescribing that "a person in the service of the Union or the State" can refer only to a person in the judicial service of the Union or the State. Article 234 which deals with recruitment of persons other than District Judges to the judicial service requires that their appointments can be made only in accordance with the Rules framed by the Governor of the State after consultation with the State Public Service Commission and with the High Court. Article 235 provides that the control over district Courts and Courts subordinate thereto shall be vested in the High Court; and Article 236 defines the expression "District Judge" extensively as covering Judges of a City Civil Court etc. as earlier set out, and the expression "judicial service" as meaning a service consisting exclusively of persons intended to fill the post of the District Judge and other civil judicial posts inferior to the post of District Judge. as earlier set out, and the expression "judicial service" as meaning a service consisting exclusively of persons intended to fill the post of the District Judge and other civil judicial posts inferior to the post of District Judge. Therefore, bearing in mind the principle of separation of powers and independence of the judiciary, judicial service contemplates a service exclusively of judicial posts in which there will be a hierarchy headed by a District Judge. The High Court has rightly come to the conclusion that the persons presiding over Industrial and Labour Courts would constitute a judicial service so defined. Therefore, the recruitment of Labour Court judges is required to be made in accordance with Article 234 of the Constitution. 4. In view of the law laid down by the Supreme Court, the contention of the petitioner cannot be accepted. 5. Prior to 1997, Labour Courts and Industrial Tribunals were presided over by officers appointed on deputation basis from amongst the members of State Higher Judicial Service. In August, 1997 by two separate notifications dated August 8, 1997 issued by the Department of Law, Justice and Legislative Affairs. Government of NCT of Delhi, the then existing ten posts of Labour Courts and three posts of Industrial Tribunals were declared as cadre posts of the Delhi Higher Judicial Service with consequential amendment in the schedule of the said service. Since then, Delhi High Court has been passing orders of posting and transferring Presiding Officers of the Labour, Courts and Industrial Tribunals. On the recommendation of the Delhi High Court, the Delhi Government issues notification in respect of the officers so posted as Presiding Officers in the Labour Court/Industrial Tribunal. 6. In April, 2004, the High Court decided to post Ms. Deepa Sharma and two other officers of Delhi Higher Judicial Service as Presiding Officers of three newly created Labour Courts. Thus, three additional or new Labour Courts were created. 7. On query being raised, the High Court informed Government of NCT of Delhi that posts of Presiding Officer in Labour Courts, which were earlier under the control of the Labour Department of the Government of NCT of Delhi, have been declared as cadre post of Delhi Higher Judicial Service, putting the Presiding Officers under the direct control of the Delhi High Court. Reference was also made to Article 235 of the Constitution of India, which vests powers of superintendence and control over subordinate judiciary with the High Court. It was pointed out that the decision to increase the strength of Labour Court by three Labour Courts was taken in public interest and with a view to expedite disposal of labour cases. It was stated that the District Judge was asked to distribute the work amongst the three new Judges by withdrawing labour disputes/cases pending before the existing Courts so as to provide them with sufficient work and reduce pressure of work on the existing Labour Courts/Tribunals. 8. Thereafter, vide notification dated June 8, 2004, Government of NCT of Delhi notified appointment of Ms. Deepa Sharma and two other officers of Delhi Higher Judicial Service as Presiding Officers in the newly constituted Labour Courts. High Court has been issuing orders for transfer and posting of officers to and from Labour Courts. The transfer of cases had taken place pursuant to the directions given by the High Court to the District and Session Judge to withdraw certain cases from the existing Labour Courts and assign them to the duly constituted Courts so as to provide them with sufficient work and to reduce pendency before other Courts. The entire exercise was conducted under the superintendence and control of the High Court as envisaged by the aforesaid Articles and Article 227 of the Constitution of India. 9. In view of the above, we do not find any merit in the present writ petition and the same is dismissed. Petition dismissed.